                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 16, 2016                      520785
________________________________

In the Matter of the Claim of
   MICHAEL J. CASTLER,
                    Appellant,
      v

NATIONAL GRID,
                     Respondent,             MEMORANDUM AND ORDER
     and

SPECIAL FUND CONSERVATION
   COMMITTEE,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    May 26, 2016

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

                              __________


      Law Firm of Alex Dell, PLLC, Albany (Courtney E. Holbrook
of counsel), for appellant.

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

                              __________


Lahtinen, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed June 4, 2014, which ruled that evidence of an exacerbation
of claimant's injury was not sufficiently documented.
                              -2-                520785

      Claimant sustained a work-related injury to his low back in
2006 and was awarded workers' compensation benefits. In January
2013, claimant's chiropractor, Douglas Van Vorst, noted an
exacerbation of claimant's low back injury after claimant
reportedly shoveled snow and experienced pain in the same area of
his back. Van Vorst rendered treatment to claimant from January
18, 2013 to February 6, 2013. In July 2013, Van Vorst again
noted an exacerbation of claimant's injury resulting from
claimant lifting a kayak and treated claimant from July 2, 2013
through July 18, 2013. The employer's workers' compensation
carrier filed a C-8.1 form disputing the medical bills for the
treatments rendered asserting, among other things, that the
treatments were not based upon a correct application of the
Workers' Compensation Board Medical Treatment Guidelines
(hereinafter MTG). The Workers' Compensation Law Judge found in
favor of the medical provider and directed the carrier to pay the
medical bills. The Workers' Compensation Board reversed that
decision and ruled in favor of the carrier, summarily finding
that Van Vorst, as the medical provider, did not completely
document the criteria for exacerbation. This appeal by claimant
ensued.

      Pursuant to 12 NYCRR 324.2 (a), "[r]egardless of the date
of accident[,] . . . treatment of on the job injuries . . . to a
worker's lumbar. . . spine . . . shall be consistent with the
[MTG]." Although "[a] variance must be requested . . . before
medical care that varies from the [MTG] is provided to the
claimant" (12 NYCRR 324.3 [a] [1]), no variance request is
necessary for the initial treatment of an exacerbation when the
care provided is consistent with the MTG (see Employer: E. Ramapo
CSD, 2016 WL 1534413, *2 [WCB No. G080 2929, Apr. 7, 2002]). "An
exacerbation is deemed to have occurred only when the treating
medical provider has fully documented the exacerbation, including
when and how it occurred, the objective changes from baseline
function, the expected type and frequency of treatments
anticipated to return [the] claimant to baseline function and the
claimant's response to treatment through documented measures of
objective functional improvement" (id.). "Objective measures of
functional improvement are defined under § A.3 of the [MTG] as
positive patient responses that 'primarily consist of functional
gains which can be objectively measured and include, but are not
                              -3-                520785

limited to, positional tolerances, range of motion, strength,
endurance, activities of daily living, cognition, psychological
behavior, and efficiency/velocity measures which can be
quantified. Subjective reports of pain and function should be
considered and given relative weight when the pain has anatomic
and physiologic correlation'" (Employer: Mohawk Val. Psych Ctr.,
2013 WL 5500940, *3, 2013 NY Wrk Comp LEXIS 8821, *6 [WCB No.
6941 2292, Sept. 25, 2013]; see 12 NYCRR 324.2 [b]). "It is not
sufficient for a treating medical provider to simply say a
claimant had an exacerbation without providing medical evidence
to support such a conclusion" (Employer: Mohawk Val. Psych Ctr.,
2013 WL 5500940, at *2, citing Employer: Syracuse Util., 2011 WL
6281994, *2, 2011 NY Wrk Comp LEXIS 8253, *5 [WCB No. 6980 6027,
Dec. 8, 2011]).

      Here, the record reflects that Van Vorst, referencing the
MTG requirements, documented both incidents and included a
description of how the exacerbations occurred, specifically
noting that the January 2013 incident occurred while claimant was
shoveling snow and the July 2013 incident occurred while claimant
was lifting a kayak. He noted that claimant had managed bouts of
back pain since 2006 through stretching exercises and over-the-
counter medication. Van Vorst, after incorporating by reference
claimant's 2006 baseline or maximum medical improvement, noted
claimant's current complaints of pain and recorded the effects on
claimant's activities of daily living being limited to a mild
degree with sitting, riding in a truck, lifting and bending –
which were similar to his 2006 complaints. Upon examination, Van
Vorst noted changes from baseline functions, including enumerated
decreased flexion and right rotation, tenderness upon palpation,
peripheralization with repetitive flexion and positive straight
leg raising tests, and that his symptoms were identical to prior
complaints associated with the established injury. In both
instances, Van Vorst documented clinical signs and subjective
symptoms that were in the same area and identical to prior
exacerbations.

      Further, Van Vorst provided sufficient information
regarding the expected type and frequency of appropriate and
necessary medical treatment to return claimant to baseline. In
addition, Van Vorst provided objective evidence of functional
                              -4-                  520785

improvement, including a decrease in spasm, and documented the
improvement in the severity of the symptoms with treatment. In
view of the foregoing medical documentation, we cannot say that
the Board's finding that Van Vorst did not provide sufficient
information in accordance with the MTG regarding the exacerbation
of claimant's injury is supported by substantial evidence (see
generally Matter of Faison v City of N.Y. Dept. of Human
Resources, 24 AD3d 829, 831 [2005], lv dismissed 7 NY3d 783
[2006]; see also Employer: Mohawk Val. Psych Ctr., 2013 WL
5500940 at *1, *3).

     Rose, Lynch, Clark and Aarons, JJ., concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
