Susan Cushman v. Walgreen Eastern Co., Inc.

Insurance Company

Sedgwick Claims Management Services

Date Decided

August 25, 2021

Panel Members

Elizabeth Elwin

David Hirtle

Evelyn Knopf


Legal Causation Medical Evidence Pre-Existing Injury Legal Causation Medical Evidence Pre-Existing Injury


File Size

92 KB


Summary from the Troubh Heisler Attorneys

The Appellate Division remands ALJ Collier's decision finding that the employee established a compensable aggravation of a pre-existing condition under Sec. 201(4).

Ms. Cushman was treated by Dr. Bean for a right shoulder, then a bilateral shoulder condition in 2016 and 2017. Following a busy day of restocking shelves on October 5, 2018, Ms. Cushman saw Dr. Bean for increased shoulder pain. Dr. Bean did not comment on causation. On October 23, 2018 she was seen in the same practice by Dr. Hufford and his PA assistants, who continued to treat up to and following surgery. Dr. Hufford or his PA completed Practitioner Reports (M-1's) for each visit identifying the right shoulder condition as "work related". The ALJ found that Ms. Cushman's testimony established legal causation because her work activities increased the risk of disability above that present in an average person's non-employment life. He then found medical causation based on the M-1 of October 23, 2021and that Dr. Bean was aware of her pre-existing right shoulder condition.

Walgreen's moved for further findings but the ALJ made no substantive changes. On appeal Walgreen's argued the ALJ opinion on medical evidence of a significant aggravation was inadequate because the ALJ misidentified the author of the October 23, 2021 M-1.

The Appellate panel found that the ALJ's conclusion on medical causation was without rational foundation. While the mere misidentification of the author alone may not be reversible error, combined with the ALJ's inferred reliance on the author being Dr. Bean who was able to compare the right shoulder condition with the pre-existing state, was without rational foundation. The panel remanded the case to determine if Dr. Hufford's opinions are sufficient to establish medical causation.

The panel also directed the ALJ to determine if Ms. Cushman met her burden of persuasion that the right shoulder condition was compensable under Sec. 201(4).

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