Matter of Norwood Norfolk Central School, Employer
No. G1456043
New York Workers Compensation
November 8, 2019
Date
of Accident: 05/16/2017
Issues:
Timely claim filing, § 28; occupational disease; date of
disablement
District
Office: Albany
Carrier:
Norwood-Norfolk CSD Carrier ID No.: W852255 Carrier Case No.:
22-2015-8
Claimant's Attorney: Carrothers & Clough, LLC
Panel:
Clarissa M. Rodriguez
MANDATORY FULL BOARD REVIEW FULL BOARD MEMORANDUM OF
DECISION
The
Full Board, at its meeting on October 8, 2019, considered the
above captioned case for Mandatory Full Board Review of the
Board Panel Memorandum of Decision filed January 28, 2019.
ISSUE
The
issue presented for Mandatory Full Board Review is whether
this claim was timely filed pursuant to Workers'
Compensation Law (WCL (Workers' Compensation Law)) §
28.
The
Workers' Compensation Law Judge (WCLJ (Workers'
Compensation Law Judge)) disallowed this claim for an
occupational disease to the back because it was not filed
timely pursuant to WCL § 28.
The
Board Panel majority reversed and found that the claim was
not time barred by WCL § 28 and established the claim
for an occupational disease to the back with a date of
disablement set as May 16, 2017.
The
dissenting Board Panel member would disallow this claim, but
would direct further development in WCB #G0061409 (an
associated claim) with regard to the low back.
The
carrier filed an application for Mandatory Full Board Review
on February 27, 2019, arguing that the claim should be found
to be time barred under WCL § 28. The carrier further
argues that the opinion of claimant's treating physician
lacks credibility and should not be relied upon.
The
claimant filed a rebuttal on March 29, 2019, arguing that she
filed her claim on or about June 20, 2016, which was within
two years from the date of disablement, and therefore the
claim was timely filed.
Upon
review, the Full Board votes to adopt the following findings
and conclusions.
FACTS
This is
a controverted claim for a back injury (WCB #G1456043). On
June 20, 2016, the claimant filed a C-3 (Employee Claim)
alleging that on March 16, 2016, while working as a school
bus driver, she injured her low back when the bus she was
driving hit a pot hole in the road and her seat and low back
were jarred. The claimant indicated that the first date of
treatment was March 31, 2016. The self-insured employer (SIE
(self-insured employer)) controverted the claim.
In an
associated claim (WCB #G0061409), claimant filed a EC-3T
(Employee Claim) on October 20, 2008, alleging that on
September 16, 2008, she suffered injuries to both hands,
wrists and arms as the result of "repetitious work"
as a school bus driver for the SIE. The claim was established
as an occupational disease for bilateral carpal tunnel
syndrome and the neck. The date of disablement was set as
August 18, 2008.
In
another claim (WCB #G0146823), the claimant filed a C-3 on
December 15, 2009, alleging she sustained injuries to her low
back, right leg, neck and both upper extremities on January
28, 2009, as a result of driving a school bus "over
rough roads, bouncing and jarring." The SIE controverted
the claim. In a February 9, 2009, report, physician assistant
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