Driscoll v. Costco, No. A-2789-21 (Feb. 20, 2024)

Appellate Division affirmed workers’ compensation orders denying medical treatment and finding lack of causation.

The Appellate Division affirmed the workers’ compensation order denying the petitioner’s motion for medical and temporary benefits and two other orders denying her motions to suppress defenses and compel discovery. 

The petitioner was assisting a cashier when she injured her back lifting a heavy case of water bottles in November 2020. She had no prior history of back injuries. She was authorized to treat with Dr. Randy Klein and, eventually, Dr. Ashraf, a spine specialist. In January 2021, the petitioner was to return to modified duty with a 20-pound lifting restriction. The employer assigned her to work inventory, which the petitioner alleged involved moving heavy stacks of clothing. She testified the repetitive job duties caused her to leave work 90 minutes before the end of her shift because it aggravated her back condition. She reported it to her manager but did not complete an accident report. She also acknowledged the employer asked that she not lift more than her restrictions.

The petitioner filed two claim petitions: one for the initial November 2020 incident and another for the aggravation and new injury in January 2021. In the meantime, the petitioner continued her authorized treatment with Dr. Yanow, a pain management specialist. As Dr. Yanow could not determine the cause of the petitioner’s pain, she ordered an updated MRI and placed the petitioner on sedentary duty, refusing her request to be placed out of work. In March 2021, the petitioner filed the motion for medical and temporary benefits. She began unauthorized treatment with Dr. Desai for pain management, while continuing authorized treatment with Dr. Yanow and Dr. Ashraf.

The petitioner filed additional motions for medical and temporary benefits after Dr. Ashraf determined she was at maximum medical improvement as the updated MRI did not reveal any need for surgery. She requested transfer of medical care to Dr. Desai and temporary benefits from March 2021. The employer opposed, arguing the petitioner was under Dr. Yanow’s care and she was paid benefits while restricted from full duty.

In May 2021, the petitioner began treating with Dr. Pekurovsky and received a steroid injection and sacroiliac joint injection, which provided 50% relief. She also underwent an EMG ordered by Dr. Yanow, which did not reveal evidence of lumbar radiculopathy. As such, she was released from care to full duty.

With regard to the motions to suppress defenses and compel discovery, the workers’ compensation judge denied same, noting it was the petitioner’s responsibility to obtain a medical report contrary to what the authorized doctor opined. The judge noted the petitioner could subpoena her own treatment records.

After hearing testimony on the motions for medical and temporary benefits, the judge noted there was no specific recommendation for additional treatment and Dr. Pekurovsky only alluded to the possibility; as such, the judge did not make any findings on treatment by a subsequent doctor. The judge then addressed the other two main issues: whether the January 2021 incident was compensable and whether the petitioner was at maximum medical improvement per the authorized doctors or if her treatment with Dr. Pekurovsky should have been authorized.

On the first issue, the judge found the second incident to be compensable based on the lay witnesses’ testimonies. However, on the second, the judge noted the employer’s doctors were more credible and found Dr. Pekurovsky did not review the EMG or MRI of March 2021.

On appeal, the petitioner argued the judge’s findings were insufficient and relied on net (lacks rational basis or fails to articulate the reasons) opinions of the employer’s doctors. She also argued the judge did not provide her with the ability to proceed on her discovery motions as she had to try the matter without evidence due to the employer’s failure to provide discovery. The Appellate Division rejected her arguments, noting the judge’s findings are supported by sufficient credible evidence. The only comment added was regarding the denial of the discovery motions, noting the judge fully explained his reasons for denying the motions and found no reason to disturb the decision. 

What’s Hot in Workers’ Comp, Vol. 28, No. 4, April 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.