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Case # 80808514
Date of Accident: 12/06/2007
District Office: Buffalo
Employer: American Axle
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 30080207850-0001
Date of Filing of Decision: 01/31/2012
Claimant's Attorney: Lipsitz, Green, Scime, Cambria, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

* This decision also pertains to the following case(s): 80505490.

The Full Board, at its meeting held on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 10, 2011.

ISSUE

The issue presented for Full Board Review is whether WCB Case #80808514 should be amended to include a left shoulder/arm injury.

In a reserved decision filed on October 30, 2009, the Workers' Compensation Law Judge (WCLJ) amended WCB Case #80808514 to include an injury to the left shoulder/arm.

In a Memorandum of Decision filed March 10, 2011, the Board Panel majority affirmed the WCLJ's decision, concluding that the WCLJ's amendment of WCB Case #80808514 to include a left shoulder/arm injury is supported by the credible testimony of Dr. Whalen.

The dissenting Board Panel member would have modified the WCLJ's decision to disallow the claim for a left shoulder injury.

In its application for Full Board Review filed on April 8, 2011, the carrier argues that the claimant did not sustain a left shoulder injury causally related to the accident on December 6, 2007.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This claim (WCB Case #80808514), is established for an injury to the back resulting from a September 3, 2008, work-related injury. Claimant seeks to have this claim amended to include an injury to his left shoulder/arm. Claimant sustained a prior work-related injury to his left shoulder in 2003 (WCB Case #80505490)

WCB Case #80505490

WCB Case #80505490 is established for an injury to the left shoulder, which resulted from an accident on January 3, 2003.

In a proposed decision which became final and was filed as a decision of the Board on June 22, 2007, an award was made for a 20% schedule loss of use of the left arm, which resulted in a total award amount of $24,960.00 for 62.4 weeks of benefits.

The following relevant medical reports were subsequently filed in WCB Case #80505490.

Dr. Whalen, the claimant's treating physician submitted a C-4 report of an examination on February 14, 2008, and in an attached narrative report, Laura Fitzpatrick, a nurse practitioner, noted that the claimant reported that he has "left shoulder pain after lifting a drawer. He states he felt a snap in his bicep muscle area and his arm immediately lost strength." Ms. Fitzpatrick noted that "[t]his is a workers' compensation [claim] but [she does] not have the original date of injury as this case will have to be reopened." Ms. Fitzpatrick further noted that the claimant had prior surgery "and he is concerned that this has again reinjured that existing problem." Ms. Fitzpatrick referred the claimant to Dr. Stegemann for evaluation and consultation.

Dr. Stegemann, the claimant's treating orthopedic physician, submitted a narrative report of an examination on February 25, 2008, and reported that the claimant had been doing well after his surgery on March 21, 2006, and had returned to his work. However, while he was working on December 11, 2007 [sic], he was "using a pry bar when it let loose. He felt a snap in his lower back and shoulder region." He initially sought treatment for his severe low back pain but over the next several weeks he had increasing pain in his left shoulder region.

Dr. Stegemann submitted a narrative report of an examination on April 21, 2008, and noted that the claimant reported continued left shoulder pain. The claimant also reported that in mid-March, he was at home drilling a 2 x 4, holding it with his left arm, when he felt a sudden pain in his left arm. Dr. Stegemann noted that "[t]his seems to be an exacerbation of his previous injury from December."

Dr. Whalen submitted a C-4 report of an examination on August 18, 2008, and in an attached narrative report, Loraine Ippolito, a nurse practitioner, noted that the claimant has a history of left shoulder surgery, but that he re-injured his left shoulder on December 11, 2007 (sic), "when he was prying out a chip unit and felt a pull in re-injury to his left shoulder."

WCB Case #80808514

On September 3, 2008, the claimant filed a C-3 form to report that he injured both shoulders and his back while he was at work on December 6, 2007. The claimant alleged that his injuries occurred while he was "pulling out chip conveyor with a bar."

The record contains a copy of a report of injury/illness dated December 10, 2007, in which the claimant reported that on December 6, 2007, he injured his low back when he was removing chip equipment using a bar (ECF Doc ID# 147128129).

Dr. Higgins, the claimant's treating chiropractor, submitted a C-4 report of an initial examination on December 6, 2007. The claimant reported that he was injured at work on December 6, 2007, while he was "pulling out chip conveyor with a bar and developed low back pain."

The record contains a "Medical Notes Details" report dated December 10, 2007, in which it is noted that the claimant sought first aid treatment from the plant medical staff (ECF Doc ID #147128127). The claimant reported that on last Thursday (i.e. December 6, 2007), he had an incident with his back. He went to his chiropractor on Thursday and Friday and used his insurance to cover it. In an email dated December 10, 2007, it was noted that the claimant reported to the employer's medical facilities on December 10, 2007, for first aid related to an injury that occurred on December 6, 2007, when the claimant was removing chip equipment, using a bar, and pulled his back.

The record contains a report from the employer's medical staff (signature is illegible) of treatment on December 10, 2007, which indicates that the claimant's chief complaint was back pain (ECF Doc ID #147128218). He declined an analgesic, was referred to the plant physician for an appointment on December 11, 2007, and was sent back to work.

In a report dated December 11, 2007, the employer's medical staff (signature is illegible) did a recheck of the claimant's low back. The injury reportedly occurred while the claimant was pulling at a bar to remove chip equipment and experienced a sharp pain in the lower back area. The pain gradually worsened, the claimant developed a spasm and sought treatment with a chiropractor.

Dr. Whalen submitted a C-4 report of his examination on December 28, 2007. In an attached narrative report, Dr. Whalen noted that the claimant complained of difficulty with back pain which has been present for three or four weeks. Dr. Whalen submitted additional reports of examinations on January 21, 2008, and February 9, 2008, and continued to note the claimant's ongoing back pain.

None of these reports indicate that the claimant initially reported any shoulder pain to Dr. Higgins, Dr. Whalen, or the employer's medical staff.

Dr. Whalen submitted a narrative report of an examination on April 8, 2008, and noted that the claimant came in for evaluation of pain in his left shoulder. The claimant reported that "[y]esterday, he was drilling a 2 x 4 when his shoulder . . . suddenly gave out." The claimant "has had significant difficulty with pain and movement in the shoulder since then."

In a narrative report of an examination on November 24, 2008, Ms. Ippolito noted that the claimant reported a workers' compensation injury occurred on December 11, 2007 (sic), when the claimant was "[p]ulling a large chip machine and it gave and he twisted back and shoulder." The claimant reported that it was a re-injury to his shoulder that Dr. Stegemann had previously treated. Ms. Ippolito diagnosed lumbar pain, and left shoulder re-injury.

The record contains a letter dated January 22, 2009, signed by Dr. Whalen and Ms. Ippolito, clarifying the note from August 18, 2008, filed in WCB Case #80505490. The note explains that, according to claimant's wife, the injury to claimant's low back and re-injury to his left shoulder, as a result of prying out a chip unit at work, occurred on December 6, 2007, rather than on December 11, 2007, as previously noted.

In a decision filed on April 17, 2009, the WCLJ established WCB Case #80808514 for a low back injury that resulted from an accident on December 6, 2007, found prima facie medical evidence of a left shoulder injury, and continued the case for the testimony of the claimant.

At the hearing held on May 18, 2009, the claimant testified that on December 6, 2007, he was working as a millwright and was told to pull out a chip conveyor. As he was pulling, his feet went and he felt his back go out. After about three days, he felt something wrong in his left shoulder. He had a prior injury to his left shoulder but had no symptoms prior to December 6, 2007. The incident of pain after lifting a drawer that was reported on Dr. Whalen's February 2008, report is a different incident. Also, in April 2008, the claimant reported to Dr. Stegemann that he had sudden pain in his shoulder when he was drilling a 2 x 4; he had the same symptoms in the same part of his arm. He was getting disgusted with his arm going out at that point. He conceded that he did not talk to anybody at work about his shoulder. His shoulder is still bothering him but he has not been treated for it in several months because he does not want more bills. Although the claimant had pain in his left shoulder within a few days after the accident and the pain has been pretty constant since then, he acknowledged that he did not report his symptoms to Dr. Whalen when he saw him on December 19, 2007, and February 9, 2008.

In a decision filed on May 21, 2009, the WCLJ directed the depositions of Dr. Whalen, Dr. Stegemann, and Dr. Higgins to proceed as previously scheduled, and directed the claimant to attend the independent medical examination scheduled on June 19, 2009.

Dr. Mason, the carrier's consulting orthopedic surgeon, submitted an IME-4 report of an examination on June 19, 2009, and noted a history of a work related accident on December 6, 2007. Specifically, the claimant reported that he was trying to pry a chip conveyor out when he felt something snap in his low back. He initially treated for his low back pain with his chiropractor, and a few days after the accident, he developed left shoulder pain but it was "nothing extreme." Dr. Mason diagnosed left shoulder pain status post previous left shoulder surgery in March 2006. Dr. Mason concluded that there is no causal relationship between the claimant's left shoulder pain and his accident at work on December 6, 2007. Dr. Mason explained that the claimant had prior complaints involving his left shoulder before December 6, 2007, and also noted that the claimant had multiple medical evaluations with no report of shoulder pain until more than 2 months after the accident date.

Dr. Stegemann testified by telephone deposition on June 4, 2009, that he first treated the claimant for his 2003 work injury to the left shoulder. By March 2007, the claimant was doing fairly well and Dr. Stegemann used the Workers' Compensation Board Medical Guidelines to find that he was entitled to a 20% schedule loss of use award for the left arm. Thereafter, Dr. Stegemann did not see the claimant again until February 25, 2008. At that time, the claimant reported a history of an injury at work on December 11, 2007 [sic], when he was using a pry bar which let loose, and the claimant felt a snap in his low back and left shoulder. Dr. Stegemann found that the claimant had ruptured the repair of the biceps tendon and that the injury was related to the December 11, 2007 [sic], accident reported by the claimant. On April 21, 2008, the claimant reported pain after drilling a 2 x 4 at home. This was related to the injury of December 11, 2007 [sic]. Dr. Stegemann did not receive a history from the claimant involving pain in the shoulder after lifting a drawer in February 2008. Dr. Stegemann testified that the type of injury claimant suffered to his left shoulder is typically painful and, when questioned concerning the failure of any medical reports prior to February 2008 to mention a shoulder injury, conceded that "it seems like he should have complained about it before" (p. 16). Dr. Stegemann testified that "all the evidence suggests" that claimant's shoulder injury occurred in February 2008, and "the only evidence…that it happened on 12/11/07 was the description that [claimant] gave me" (p. 17). Dr. Stegemann explained that usually when someone ruptures a tendon, there is pain immediately which eventually goes away, and that "it's unusual to have a sequence where you don't notice it and then you notice" (p.18).

Dr. Whalen testified by telephone deposition on June 4, 2009, that the letter dated January 22, 2009, was prepared to clarify the date of injury. Dr. Whalen opined that the December 6, 2007, incident was a reinjury of the left shoulder which was originally injured in 2003, since Dr. Stegemann's notes indicate that the claimant had a good recovery after his surgery. Dr. Whalen noted that the claimant was seen in his office for a routine physical on December 19, 2007. However, the notes for that examination do not reference the shoulder. Although the claimant was seen a few times after that, the first time that the claimant mentioned the December 2007 work incident involving his left shoulder was during the examination on August 18, 2008. In February 2008, he reported shoulder pain after lifting a drawer and in April 2008, he reported shoulder pain after drilling a 2 x 4. Dr. Whalen explained that these kinds of injuries are sometimes wear and tear problems and it is fairly common that repeated use of the arm will aggravate the problem. Therefore, Dr. Whalen would classify these series of events as reinjuries or exacerbations of the original problem. Dr. Whalen does not see the claimant's failure to timely report this left shoulder injury as unusual because patients "are not always real precise" (p. 27). He believes that the claimant's left shoulder problem is related to the incident at work in December 2007, because he knows the claimant and does not believe him to be deceptive.

Dr. Higgins testified by telephone deposition on July 2, 2009, and confirmed that he did not make any notation that the claimant complained of left shoulder pain at any time between December 6, 2007, and July 28, 2008. However, Dr. Higgins is aware that the claimant has had left shoulder pain from time to time but he was under supervision with another physician so Dr. Higgins did not document it or treat it.

The parties submitted written summations, and in a decision filed on October 1, 2009, the WCLJ noted that the claimant has waived the testimony of Dr. Mason, and continued the case for a reserved decision.

As noted above, the WCLJ, by a reserved decision filed on October 30, 2009, amended WCB Case #80808514 to include an injury to the left shoulder/arm, resolved form C-8.1 objections in favor of the provider(s), and directed that WCB Case #80505490 be marked no further action on prior findings. In finding that the claimant sustained an injury to his left shoulder/arm in December 2007, the WCLJ credited the testimony of the claimant and his physicians. The WCLJ further found that "[i]t is clear from the record that the claimant's low back condition was the more troublesome condition for the claimant following the accident of December 6, 2007." Finally, the WCLJ found that the incidents in February 2008 and April 2008 were not new injuries but rather, "caused the claimant's symptoms to be exacerbated."

LEGAL ANALYSIS

The burden of establishing a causal relationship between employment and a disability rests with the claimant who must do so by competent medical evidence (Matter of Mitchell v New York City Transit Authority, 244 AD2d 723 [1997]). The medical opinion need not be expressed with absolute or reasonable certainty. It must, however, be an indication of sufficient probability as to the cause and the medical opinion must be supported by a rational basis (Matter of Van Patten v Quandt's Wholesale Distributors, 198 AD2d 539 [1993]).

The WCLJ amended WCB Case #80808514 to include an injury to the left shoulder/arm, crediting the testimony of the claimant and Dr. Whalen. However, the credibility of claimant's testimony that he injured his shoulder on December 6, 2007, is undermined by the lack of medical evidence of such an injury until almost two months later, and the testimony of his treating physician, Dr. Stegemann. The claimant testified that his left shoulder was painful within a few days after the accident and the pain has been pretty constant since then. However, he also acknowledged that he did not report his symptoms to Dr. Whalen when he saw him on December 19, 2007, and February 9, 2008, and did not report any left shoulder pain to anyone until February 14, 2008. At that time, however, the claimant provided a completely different history of injury, indicating that his pain began after lifting a drawer. In addition, the report of injury/illness that was completed by the claimant for his employer on December 10, 2007, contemporaneous to the accident date, he did not report any injury to either of his shoulders.

Dr. Stegemann testified that the injury claimant suffered to his left shoulder is normally immediately painful and that claimant's failure to report the condition prior to February 2008, suggests that it occurred later than December 6, 2007. Dr. Whalen, while asserting his belief that claimant was credible, failed to reasonably explain claimant's failure to report the injury earlier.

Therefore, the Full Board finds claimant's left shoulder injury is not causally related to the accident that occurred on December 6, 2007, and that WCB Case #80808514 should not be amended to include a left shoulder injury.

CONCLUSION

Accordingly, the WCLJ reserved decision filed October 30, 2009, is MODIFIED to disallow the claim for a left shoulder injury. The rest of the WCLJ decision remains in effect. No further action is planned by the Board at this time.