* This decision also pertains to the following case(s): 60311857, and G0145012.
The Full Board, at its meeting on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on February 28, 2011.
The issue presented for Full Board Review is whether the carrier in this case is liable for payment of the claimant's total knee replacement surgery and indemnity benefits following the claimant's injury on April 17, 2009.
By a decision filed May 27, 2010, the Workers' Compensation Law Judge (WCLJ) found that notwithstanding the claimant's prior arthroscopic right knee procedure and arthritis in the right knee, the April 17, 2009, accident precipitated the immediate need for a total knee replacement. Accordingly, the WCLJ found that PMA (the carrier in this case) is responsible for the payment of the total knee replacement surgery and indemnity benefits. The WCLJ made this finding without prejudice to potential apportionment upon a finding of permanency.
In a Memorandum of Decision (MOD) filed February 28, 2011, the Board Panel majority affirmed the WCLJ's decision.
However, the dissenting Board member would have not found PMA liable for the total knee replacement surgery and indemnity benefits.
In PMA's application for Mandatory Full Board Review filed on March 29, 2011, it argues that the claimant's April 17, 2009, injury had nothing to do with her need for total knee replacement.
In a rebuttal filed with the Board on April 28, 2011, the State Insurance Fund (SIF) (the carrier in two other related cases for knee injuries in 2003 and 2005) argues that the Board Panel majority properly determined that the liability for total knee replacement should be placed on PMA, the carrier liable for the 2009 injury, because claimant returned to work at full duty following treatment for the 2003 accident, lost no time from work following the 2005 accident, and did not treat between June 2006 and the 2009 accident.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On April 17, 2009, the claimant, then a 54 year old food server/cook, sustained a work-related injury to her knee when she twisted it while loading a rack of dishes into a dishwasher. This case was established for the claimant's right knee. The claimant has two related workers' compensation cases, also for injuries to her right knee. SIF is the carrier in both of the related cases.
The first related case is WCB Case No. 60311857. It is established for an injury to the claimant's right knee that occurred on January 11, 2003, when a crate of milk fell onto her knee. The claimant continued working until November 3, 2003, at which time she had arthroscopic surgery. After the surgery, the claimant returned to work full duty on December 15, 2003.
The second related case is WCB Case No. G0145012. It is established for an injury to the claimant's right knee that occurred on June 18, 2005, when the claimant slipped on a greasy floor and fell. The claimant did not miss any time from work following this incident.
At the hearing on November 23, 2009, the claimant testified that she twisted her right knee while placing a rack weighing 18-25 pounds in a dishwashing machine on April 17, 2009. She felt and heard a pop in her knee at the time of the accident. She experienced worse pain in her knee after the April 17, 2009, twisting incident than she had experienced in the past. Following her 2003 and 2005 accidents, she experienced occasional problems with her knee. In 2005, Dr. Gowan requested that the claimant have total knee replacement surgery, but she did not go through with surgery at that time because she did not want to take herself out of work. Following the April 17, 2009, accident where she twisted her knee, the claimant worked until she could no longer stand the pain. She sought medical treatment on May 17, 2009. The claimant stopped working on May 19, 2009, and has remained out of work. She underwent total knee replacement surgery on October 26, 2009.
Dr. Bhatt, PMA's consulting orthopedic surgeon, testified by deposition on April 26, 2010. Dr. Bhatt examined the claimant on December 4, 2009. Based on his review of the claimant's medical records, he attributed the claimant's need for the total knee replacement to the 2003 accident and arthritis resulting therefrom. Dr. Bhatt did not review the claimant's x-rays taken prior to the 2003 incident so he could not comment on whether the 2003 incident was an aggravation of a pre-existing condition. Dr. Bhatt also testified that the need for knee replacement surgery is correlative to an individual's symptoms. He noted that the claimant continued working in spite of having severe arthritis, and in 2009, she sprained her knee and might have triggered a pre-existing problem, leading to total knee replacement. He conceded that if a patient was functional and able to work without restrictions, even though the radiology report indicated he/she had significant degenerative changes, that he would not recommend a total knee replacement.
Dr. Ferraraccio, SIF's consulting orthopedic surgeon, testified by deposition on April 15, 2010. Dr. Ferraraccio examined the claimant on November 24, 2009. Dr. Ferraraccio characterized the claimant's knee injury in 2003 as a contusion and the knee injury in 2005 as a twisting injury. He opined that the need for the total knee replacement was precipitated by the 2009 injury which aggravated the pre-existing osteoarthritis in the claimant's knee. He apportioned claimant's disability 40% to the 2009 injury and 60% to degenerative arthritis pre-existing the 2003 injury. Dr. Ferraraccio further testified that even an individual who has fairly advanced changes like [claimant] did, as long as he/she remained functional with a low grade or no pain, that even though x-rays may look "fairly horrific" that he/she should not proceed to total knee arthroplasty until the individual had symptoms to warrant going through [with] the procedure.
Dr. Marson, the orthopedic surgeon who performed the claimant's total knee replacement, testified by deposition on April 8, 2010. He believes that the need for the knee replacement surgery is 100% attributable to the 2003 accident based on the findings of Dr. Gowan (the doctor who performed the claimant's arthroscopic surgery in 2003) following the 2003 arthroscopic surgery. However, Dr. Marson also feels that the 2005 and 2009 injuries aggravated the claimant's arthritic knee. Dr. Marson was not comfortable providing an opinion on apportionment among the incidents since he had not reviewed all of the prior records, but acknowledged that each incident likely contributed to potential apportionment upon a finding of permanency.
A review of the medical evidence in WCB Case No. G0145012 (2005 injury) reveals that in his September 6, 2005, report, Dr. Gowan discussed with the claimant treatment options, including but not limited to, total knee replacement. Part of the treatment options also included continued conservative management (versus proceeding with a right total knee replacement). In addition, in an IME report dated October 15, 2005, SIF's orthopedic consultant, Dr. Wirth, opined that there was no need for further causally related orthopedic treatment, including surgery.
By a decision filed May 7, 2010, the WCLJ found that notwithstanding the claimant's prior arthroscopic right knee procedure and arthritis in the right knee, the April 17, 2009, accident precipitated the immediate need for a total knee replacement. Accordingly, the WCLJ found that PMA (the carrier in this case) is responsible for the payment of the total knee replacement surgery and indemnity benefits. The WCLJ made this finding without prejudice to potential apportionment upon a finding of permanency.
Drs. Ferraraccio and Bhatt testified that the primary factor in justifying a total knee replacement is the magnitude of the claimant's symptoms and complaints of pain, not what degenerative changes may be seen on an x-ray alone. Drs. Ferraraccio and Bhatt were in agreement that some individuals are functional and able to work without restrictions regardless of degenerative changes evidenced by x-rays and that the decision to proceed with joint replacement surgery versus conservative treatment is correlative to an individual's pain tolerance and functional ability. Dr. Ferraraccio opined that the need for surgery was directly precipitated by the April 17, 2009, injury.
The record reveals that the claimant did not treat for her knee condition for close to three years prior to the accident in this file and was able to work without restrictions. The claimant testified that she became painfully symptomatic after the April 17, 2009, incident and ceased working a month later. Accordingly, "but for" the knee twisting incident in 2009 aggravating her non-symptomatic (dormant) knee condition, the claimant likely would not have had total knee replacement surgery in October 2009.
As for the request for total knee replacement surgery made by her treating physician Dr. Gowan in 2005, there is evidence to suggest that this was not the only treatment plan being considered by the claimant and her treating physician at the time. In fact, the report wherein authorization for the surgery is requested indicates that Dr. Gowan discussed with the claimant continued conservative management versus proceeding with a right total knee replacement.
"It is well settled that where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a pre-existing infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 ).
In sum, a preponderance of the credible evidence in the record indicates that the claimant's causally related knee twisting injury on April 17, 2009, aggravated her pre-existing knee condition and precipitated her need for total knee replacement surgery. Accordingly, the Full Board finds that PMA, as the carrier in this case, should be held liable for the cost of the surgery, as well as for any awards following the April 17, 2009, accident, until such time as a determination is made on the issue of apportionment.
Accordingly, the WCLJ decision filed May 27, 2010, is AFFIRMED. No further action is planned at this time.