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Claimant, 49 years of age, worked in various positions


Claimant, 49 years of age, worked in various positions at the employer’s saw mill, most recently as a millwright. Every position he held during his 24-year career involved arduous physical labor, including heavy lifting on a daily basis. Sometime in March 1998, claimant began experiencing pain in his hip and leg. He did not identify any specific incident that caused the pain, but pointed to a number of his job duties that involved heavy physical labor. According to the Queens claimant, the pain developed gradually. After learning from his family physician that the pain related to a back condition or back injury, claimant sought compensation benefits. The employer and carrier or E/C completely denied the claim, including the request for a medical treatment. On 29 April 1998, claimant came under the care of doctor-A, who is an orthopedic surgeon, who placed him on a no-work status. After testing, physical therapy, and consultation with another doctor, doctor-B who is a neurosurgeon, doctor-A diagnosed lateral recess stenosis with degenerative disk disease and L3-4 herniated disk. Thus, claimant filed a claim under the worker’s compensation for compensation benefits. Thereafter, the judge of compensation claims or the JCC, in resolving the claim for compensation benefits, found the stenosis compensable under a repetitive trauma theory based on claimant’s and doctor-A’s testimony, and concluded that claimant’s heavy lifting and repetitive bending while working for the employer over the course of more than 20 years ca

There are two issues raised by the E/C on appeal, viz: first, that the judge of compensation claims (JCC) erred in deciding that claimant provided timely notice of his work injury; and, second, that claimant suffered a compensable accident under a repeated trauma theory. On the second issue, E/C contends that the only competent, substantial evidence (CSE) established that claimant’s non-compensable herniated disk combined with his preexisting lateral recess stenosis to cause his disability and need for treatment, and no evidence was presented that the employment was the major contributing cause of same.

The court finds that CSE supports the JCC’s determination of the first issue. And, on the second issue, after applying the limited standard of review of CSE, the court finds it proper but not for all of the reasons mentioned. First, there was no burden on claimant to prove that the stenosis was the major contributing cause of the disability. The stenosis is not a preexisting condition and there was only one cause, rather than multiple causes, of claimant’s disability and need for treatment. Second, a combination of the evidence, both lay and medical, supports the JCC’s determination that the employment caused claimant’s disability and need for treatment.

The instant case is not a case in which a compensable injury is combined with a preexisting condition to cause or prolong a disability. It is true that claimant’s spinal stenosis or spinal injury preexisted claimant’s disability. However, this does not mean that it was actually a preexisting condition. Historically, this expression has been defined to mean something that is personal to the employee, an idiopathic condition which the worker brings to the workplace, that is, a condition or disease which exists independently of any employment contribution, although it may be later aggravated or accelerated by the employment. Here, it cannot be simply concluded from the evidence that the stenosis, which is itself the compensable injury, combined with a preexisting condition to cause or prolong disability or need for treatment. Moreover, the evidence shows that there was only one cause, rather than multiple causes, for claimant’s disability. The record before the court discloses, and the JCC implicitly found by granting benefits, that the employment-related injury was the only cause of claimant’s disability. Because there was only one cause, the burden imposed by the elevated major-contributing-cause standard is inapplicable. Although it is true that the JCC found that the major contributing cause of claimant’s stenosis was the repetitive work activity, this finding was unnecessary, because it implies that more than one cause combined to bring about the disability. As to the herniated disk, which the E/C claims joined with the preexisting spinal stenosis or spinal injury to cause the disability, the JCC essentially rejected doctor-A’s testimony that it was a contributing cause, finding instead that the hypothetical facts on which the Manhattan physician based his opinion were not supported by the trial testimony. Nonetheless, this finding has not been challenged on appeal. Thus, the court cannot review the soundness of its ruling. Additionally, it is unclear from the record when the herniated disk occurred. It could have taken place in September or October 1997, when claimant first sought medical care for back pain or back injury. The absence of proof as to its occurrence may have motivated the JCC to conclude that the disk herniation was not a cause of the disability arising in March 1998.

The question now is whether CSE supports the JCC’s causation determination. In answering this question, it is necessary to identify the appropriate causation test. As the law provides, to establish compensability, a claimant must demonstrate that he or she suffered an accidental injury arising out of work performed in the course and the scope of employment. To show that an injury arises out of work in a repetitive trauma case, the claimant is required to prove a prolonged exposure to a condition or activity, the cumulative effect of which is injury or aggravation of a preexisting condition, and that claimant has thereby been subjected to a hazard greater than that to which the general public is exposed. Alternatively, the claimant must show a series of occurrences, the cumulative effect of which is injury. Causation can be established through lay and medical testimony.

Here, claimant’s injury, specifically, spinal stenosis or spinal injury, is a classic example of a repeated trauma injury, one which is an exception to the ordinary situation involving injury by accident, where both the cause and the result are sudden. In the typical repetitive trauma model, the disabling condition is one that gradually arises over a protracted period of time, often years, as in the present case. Under this theory, each bump, scratch, strain, jar, irritation, noise, etc., is regarded as an accidental occurrence. Compensation is awarded due to the cumulative effect of a long series of such occurrences leading to the disability or need for treatment. It is clear in the case at bar that the lay and medical evidence supports the JCC’s finding that repetitive trauma arising from claimant’s work activity caused his disability. It must be noted that claimant first went to work at the employer’s saw mill during his early twenties when he was symptom-free; that he consistently performed heavy, manual labor over the course of his 24-year employment at the mill; and that he repeatedly pulled chains weighing 40 pounds, moved logs that were 12 inches in diameter and 20 feet long, stacked lumber in piles and moved them, lifted 50-gallon drums of oil, carried oxygen and acetone bottles weighing up to 60 pounds, pulled levers and cables that were the equivalent of 40 pounds, replaced saws, collars, chipper knives, and edging knives, all of which were heavy, and shoved heavy 200-horsepower motors across metal floors. There was no evidence presented that claimant had ever suffered any disabling condition before the compensable injury in question. Thus, basing on the activities which claimant was required to perform during his employment, the repetitive trauma elements of prolonged exposure and a greater hazard than that to which the general public is exposed has been complied with, along with the alternative test regarding the cumulative effect of the repetitive activities.

The rule has long been established that the resolution of causation issues is within the exclusive province of the judiciary and not the medical profession, and may be reached using a combination of medical and lay evidence. Lay testimony is of probative value in establishing the sequence of events, actual inability or ability to perform work, pain, and similar factors within the actual knowledge and sensory experience of the claimant. The requirement of presentation of medical evidence in situations involving non-observable injuries has not been overruled. The court has not read the ruling in the case of Closet Maid as overruling such requirement. In that case, the back injury which claimant suffered could be only recognized by a medical diagnosis. The court does find any basis for a reference to the medical testimony presented in Closet Maid, which seems to imply that spinal stenosis is invariably a preexisting, non-work-related condition. However, the facts in Closet Maid show that it was tried under a different theory from that of repetitive trauma. There, the claimant’s disabling condition and need for treatment followed a specific industrial accident, and the medical evidence identified claimant’s spinal stenosis as a personal, preexisting condition, and thus requiring an application of the major-contributing-cause-standard; also, a professor addressed the comparable problem of proving the compensability of heart-related conditions in the absence of evidence that there was a prior history of heart disease saying, that although there is no evidence in the record of a heart disease, that fact will be supplied by judicial notice, because the preponderance of medical theory holds that the worker must have had a preexisting heart disease, but, that this may actually contradict the record, which may contain undisputed testimony that the man was healthy and had no previous history of a heart disease. The legal answer is that the determination of preexisting heart disease is one of medical fact in the particular case. In addition, if another cause unrelated to the workplace existed in the record, this would warrant a reversal of the order but such is not the case. The somewhat unique nature of repetitive trauma injuries, in which, as stated, the disabling condition does not immediately arise following a single incident, but gradually occurs following a cumulative series of incidents over an extended time frame cannot be disregarded.

In sum, the court has a limited standard of review. The court’s function is only to review whether the record contains competent and substantial evidence to support the JCC’s decision, pursuant to the rules and the law. The court does not have the power and authority to assess whether it is possible to recite contradictory record evidence which supports an argument rejected in a lower forum; neither will the court retry the case and substitute its judgment for that of the JCC on factual matters supported by CSE. As a rule, a judge’s findings will be sustained if any view of the evidence and its permissible inferences will permit it. Although one might, in contravention of the court’s long-established review standards, refer to contradictory evidence in isolated portions of the record, a JCC’s determination of causation depends on the substance of all of the evidence, rather than on whether a medical witness’s testimony explicitly tracks the particular statutory language. Thus, since there is actually a competent and substantial evidence to support the JCC’s finding that repetitive trauma from claimant’s work activity caused his stenosis, and that the stenosis in turn resulted in the disability and/or need for treatment arising in March 1998, the court finds that the worker’s compensation order appealed from must be affirmed.

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