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In re Claim of Bland

Supreme Court of New York, Third Department

June 29, 2017

In the Matter of the Claim of SHARON K. BLAND, Appellant,
v.
GELLMAN, BRYDGES & SCHROFF et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent. (Claim No. 1.) In the Matter of the Claim of SHARON K. BLAND, Appellant,
v.
RONCO COMMUNICATIONS et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent. (Claim No. 2.)

          Calendar Date: April 25, 2017

          Sharon K. Bland, Lewiston, appellant pro se.

          Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Funds Conservation Committee, respondent.

          Hamberger & Weiss, Buffalo (Renee E. Heitger of counsel), for Ronco Communications and another, respondents.

          Before: Garry, J.P., Lynch, Rose, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          AARONS, J.

         Appeals (1) from an amended decision of the Workers' Compensation Board, filed January 20, 2015, which, among other things, approved claimant's request for a variance and denied claimant's request for reconsideration and/or full Board review, (2) from a decision of said Board, filed January 21, 2015, which ruled, among other things, that claimant did not sustain a consequential causally-related injury, has a partial impairment of a moderate-to-marked degree and sustained a 50% loss of wage-earning capacity, (3) from an amended decision of said Board, filed January 27, 2015, which, among other things, approved claimant's request for a variance and denied requests for reconsideration and/or full Board review, (4) from a decision of said Board, filed February 2, 2015, which denied claimant's request for reconsideration and/or full Board review, and (5) from a decision of said Board, filed February 25, 2015, which denied claimant's request for reconsideration and/or full Board review.

         The underlying history is set forth in prior appeals to this Court involving these parties (Matter of Bland v Gellman, Brydges & Schroff, 127 A.D.3d 1436');">127 A.D.3d 1436 [2015], lv dismissed 26 N.Y.3d 948');">26 N.Y.3d 948 [2015]; Matter of Bland v Gellman, Brydges & Schroff, 103 A.D.3d 969');">103 A.D.3d 969 [2013], lv dismissed 21 N.Y.3d 920');">21 N.Y.3d 920 [2013]; Matter of Bland v Gellman, Brydges & Schroff, 100 A.D.3d 1289');">100 A.D.3d 1289 [2012], lv denied 20 N.Y.3d 1055');">20 N.Y.3d 1055 [2013]). Briefly, in 1993, a workers' compensation claim was established for claimant (claim No. 1) and, in 2008, responsibility for this claim was subsequently transferred to the Special Fund for Reopened Cases. Also in 2008, a second claim was established for which Travelers Insurance Company was responsible (claim No. 2). Liability was apportioned equally between the two claims.

         The first appeal (appeal No. 520498) stems from claimant's variance request made through her treating physician to treat her thoracic outlet syndrome with aquatic therapy. The Workers' Compensation Board denied the variance request on the basis that claimant did not properly file a request for review, but this determination was subsequently reversed by this Court (Matter of Bland v Gellman, Brydges & Schroff, 103 A.D.3d at 971). Upon remittal, the Board, in a May 2013 decision, denied the variance request on the merits. After claimant sought reconsideration, the Board issued a January 20, 2015 amended decision concluding that full Board review was unwarranted. The Board also found that the requested aquatic therapy was not appropriate for the treatment of thoracic outlet syndrome and removed its previous finding in the May 2013 decision that the Shoulder Injury Medical Treatment Guidelines do not apply to thoracic outlet syndrome.

         Regarding the second appeal (appeal No. 520500), a Workers' Compensation Law Judge (hereinafter WCLJ) amended claimant's claims to include consequential myofascial pain syndrome but not her fibromyalgia condition. The WCLJ also determined that claimant had reached maximum medical improvement, that she had a partial impairment of a moderate-to-marked degree, that she had a 50% loss of wage-earning capacity and that she tried to influence the opinion of a treating physician in violation of Workers' Compensation Law § 13-a (6). The Board, in a decision issued January 21, 2015, reversed the WCLJ's finding that claimant violated Workers' Compensation Law § 13-a (6) and otherwise upheld the balance of the WCLJ's findings.

         Regarding the third appeal (appeal No. 520497), a WCLJ approved claimant's request for Botox therapy to treat her causally-related fibromyalgia and migraines. In an August 26, 2013 decision, the Board upheld this determination and further found that the Shoulder Injury Medical Treatment Guidelines do not apply to thoracic outlet syndrome. In an amended decision issued January 27, 2015, the Board removed from its findings that claimant had a causally-related fibromyalgia condition and that the Shoulder Injury Medical Treatment Guidelines do not apply to thoracic outlet syndrome. The Board's determination that claimant was entitled to Botox therapy for the migraines was kept intact.

         Regarding the fourth appeal (appeal No. 520499), a WCLJ directed Travelers to reimburse claimant for certain medical and travel expenses. In an August 27, 2013 decision, the Board rescinded the WCLJ's decision, found that Travelers was entitled to an audit of claimant's claimed expenses from 2008 and 2012 and directed Travelers to provide claimant and the Board with the results of the audit. Claimant subsequently sought reconsideration and/or full Board review of, and also directly appealed from, the August 27, 2013 decision [1]. The Board denied claimant's application for reconsideration and/or full Board review in a decision filed February 2, 2015.

         Regarding the fifth appeal (appeal No. 520728), a WCLJ concluded that claimant was attached to the labor market from June 2008 to December 2011 and granted certain awards for that time period. The Board, in a decision issued August 26, 2013, determined that claimant's attachment to the labor market had been proven and modified the WCLJ's award for certain time periods. The Board also determined that claimant was not entitled to travel expenses related to out-of-state travel for treatment. Claimant thereafter sought reconsideration and/or full Board review of, and also directly appealed from, the August 26, 2013 decision [2]. The Board, in a decision filed February 25, 2015, denied claimant's request for reconsideration and/or full Board review. Claimant separately appeals from these five decisions. We have consolidated the appeals for disposition.

         As to the first appeal, claimant initially challenges the Board's finding that the treatment of thoracic outlet syndrome falls within the Shoulder Injury Medical Treatment Guidelines. The Board has the authority to promulgate medical treatment guidelines defining the nature and scope of necessary treatment (see Matter of Kigin v State of N.Y. Workers' Compensation Bd., 24 N.Y.3d 459, 463 [2014]). An agency's construction of its statutes and regulations will be upheld if rational and reasonable (see Matter of Cooke Ctr. for Learning & Dev. v Mills, 19 A.D.3d 834, 835 [2005], lv dismissed and denied5 N.Y.3d 846');">5 N.Y.3d 846 [2005]). Here, the Board explained that "thoracic outlet syndrome is deemed a brachial plexus injury which is considered a shoulder injury" and, therefore, governed by the Shoulder Injury Medical Treatment Guidelines. The documentary evidence further reveals that an email was sent to claimant from the ...


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