| Matter of Shkreli v Initial Contract Servs. |
| 2008 NY Slip Op 08042 [55 AD3d 1067] |
| October 23, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Elida Shkreli, Appellant, v Initial ContractServices et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Vecchione, Vecchione & Connors, Williston Park (Leonard B. Feld, Jericho, of counsel), forInitial Contract Services and another, respondents.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed December 16, 2005,which, among other things, disallowed the claim for consequential psychiatric disability.
In August 2002, as a result of receiving an electrical shock while at work cleaning offices, claimantfell, hit her head and lost consciousness. A workers' compensation claim was established for theresulting injuries to her neck and back, and those injuries were found to have rendered her permanentlypartially disabled. When she began to suffer from depression, hearings were held on the issue ofwhether she also would be entitled to benefits for her psychiatric condition. A Workers' CompensationLaw Judge determined that the accident was a precipitating cause of claimant's depression andawarded her additional workers' compensation benefits for the resulting temporary total disability. TheWorkers' Compensation Board reversed that determination, finding the testimony of the carrier'spsychiatrist to be more credible than the testimony of claimant's treating psychiatrist on the issue ofcausation and concluding that her depression was not attributable to the accident. Claimant appeals andwe reverse the Board.[*2]
Claimant met her burden of establishing a causal relationshipbetween her employment and her psychiatric condition by submitting her medical records and thetestimony of Dushan Kosovich, a board-certified psychiatrist who had treated her since February 2003(see Matter of Mayette v Village of MassenaFire Dept., 49 AD3d 920, 922 [2008]; Matter of De Salvo v Prudential Ins. Co. ofAm., 248 AD2d 897, 898 [1998]). Kosovich stated unequivocally that the pain and debilitationthat claimant suffered due to her workplace accident was the cause of her disabling depression. Inaddition to diagnosing claimant with postconcussion syndrome, Kosovich cited her disc herniations andher headaches, neck pain and back pain, which he termed severe, chronic and disabling, as the physicalcauses of her depression. All of those conditions had been previously described and attributed to the2002 accident in the records of other medical professionals. He also noted the temporal proximity ofclaimant's depression to her accident and the absence of any prior treatment for or record ofdepression.
This opinion was disputed by Mark Rubinstein, a psychiatrist who was hired by the workers'compensation carrier to conduct an independent medical exam of claimant in 2003. While agreeing thatclaimant suffers from major depression, Rubinstein opined that its cause was not her accident in August2002, but the unrelated stress of her emigration from Albania in 1998, her separation from one of herthree children who remained in Europe and having to work as a cleaning lady in this country rather thanas a college-educated person in Albania. In forming this opinion, Rubinstein relied primarily on medicalreports that minimized the seriousness of claimant's physical injuries. Thus, he referred to her injuries as"relatively benign" and concluded that she was reporting pain "far out of proportion to any objectivefindings" and had "recruited" the accident to justify her "disproportionate disability."
While it is for the Board to resolve conflicting expert medical testimony, especially where itconcerns the issue of causation (see Matter ofPearson v Bestcare, 48 AD3d 862, 863 [2008], lv denied 10 NY3d 715 [2008]; Matter of Walker v TNT Red Star Express,25 AD3d 945, 946 [2006]), its determinations must be supported by substantial evidence (see Matter of McDonald v Water TunnelContrs., 51 AD3d 1151, 1153 [2008]), and it may not rely upon a medical opinion that ispurely speculative rather than demonstrating a reasonable probability as to the cause of an injury(see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539, 539 [1993]). Fora medical opinion regarding causation to qualify as competent evidence, it must "signify a probability asto the cause of the injuries for which compensation is sought and be supported by a rational basis" (Matter of Zehr v Jefferson RehabilitationCtr., 17 AD3d 811, 812 [2005]; see Matter of Mayette v Village of Massena FireDept., 49 AD3d at 922).
Rubinstein's opinion is not supported by a rational basis. He failed to explain why claimant'sdepression appeared and she sought psychiatric treatment only after the 2002 accident even though thesocial factors to which he attributed her depression had been present in her life since 1998. Further, hisbasic assumption, that claimant's accident produced only mild physical injuries and, thus, her reportedpain is disproportionate, is undermined by his having ignored numerous medical records that describeher physical injuries. The injuries attributed to claimant's accident include an electrical shock, aconcussion, severe headaches, herniated discs, cervical and lumbar radiculopathy, limited range ofmotion and muscle spasm. Rather than address those conditions and explain how they are only mild andcould not cause her disability, Rubinstein merely stated that he was not convinced that claimant hadsustained an electric shock injury or a concussion, and that he did not believe her herniated discs werethe cause of her persistent pain. While the record also includes more recent, conflicting reports ofclaimant's treating chiropractor and the carrier's chiropractor as to whether her physical disability is[*3]ongoing, there is no dispute that she previously was found to have apartial physical disability caused by the accident. Finally, Rubinstein admitted that whether claimant'spain is psychogenic or "truly caused by physical pathology, I don't think anyone knows."
We also note that the Board credited Rubinstein's opinion based on its erroneous view thatKosovich had "acknowledged that the claimant's non-work related factors, including a change ofprofessions and the distance from her child, could have caused the depression." The record, however,is clear that when Kosovich was asked, as a "general psychiatric question," whether a change in socialcircumstances such as that experienced by claimant could result in depression, he answered, "It could,but we don't have any evidence of that happening with [claimant] because she never asked for any help,any psychiatric consultations until this accident happened." Rather, it was Rubinstein whoacknowledged on cross-examination that claimant's sense of bereavement and loss of sense of worth,which he attributed to nonwork-related factors, could have been caused by claimant's physical painand disability.
Since claimant had not been treated for depression prior to her accident and the record is devoidof an opinion by an orthopedic or neurological specialist that her back and neck injuries could not havecaused the pain and incapacity that she reported, Rubinstein's opinion is "too speculative todemonstrate 'a sufficient relationship' between" claimant's depression and the nonwork-related factors(Matter of Chinkel v Fair Harbor Fire Dept., 295 AD2d 829, 830 [2002], quoting Matterof Scofield v City of Beacon Police Dept., 290 AD2d 845, 846 [2002]). As a result, Kosovich'sopinion that the accident was a cause of claimant's depression is effectively uncontroverted and theBoard improperly rejected it in the absence of substantial evidence supporting a contrary conclusion(see Matter of O'Malley v Consolidated Edison Co. of N.Y., 301 AD2d 814, 815 [2003];Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674, 675 [1997], affd 90NY2d 914 [1997]; see also Matter of Lopezv Superflex, Ltd., 31 AD3d 914, 915 [2006]).
Mercure, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the decision is reversed, withcosts, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.