The Full Board, at its meeting held on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on December 9, 2011.
The issues presented for Mandatory Full Board Review are:
In a decision filed February 10, 2011, the Workers' Compensation Law Judge (WCLJ) amended the claim to include a neck injury, and resolved the outstanding C-8.1s in favor of the providers. The WCLJ did not address the issue of whether the SIE's consultant's reports violated WCL § 137.
The Board Panel majority found that the claimant's neck injury was not causally related to her work accident because the claimant did not have neck symptoms for two months after her accident. The Board Panel majority also declined to consider the claimant's rebuttal argument that Dr. Nathan's reports should be precluded, finding that the claimant's argument constituted an untimely request for administrative review.
The dissenting Board Panel member found that the record was devoid of any evidence to indicate any other cause for the claimant's neck injury other than the work accident, and therefore the claim should be amended to include the neck.
In her application for Mandatory Full Board Review, claimant argues that the record supports amendment of this claim to include a neck injury and that the reports of Dr. Nathan should be precluded as they did not conform to WCL § 137.
In its rebuttal, the SIE argues that the opinion of the Board Panel majority was correct in all respects.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a physical education teacher, suffered a work-related injury to the left shoulder when a student bumped into her in the school hallway on November 13, 2009. On February 12, 2010, the claimant filed a Form C-3 (Employee Claim), stating that she suffered from left shoulder pain as a result of a work accident.
The SIE did not controvert the claim. In a June 30, 2010, Proposed Decision, which became final on August 3, 2010, the claim was established for a left shoulder injury, the claimant's average weekly wage was set at $1,927.40, and the claimant was directed to submit prima facie medical evidence regarding any additional sites.
The claimant was examined on November 13, 2009, by Dr. Ruotolo. The claimant reported that she collided with a female student's backpack and suffered a shoulder injury. Dr. Ruotolo noted that he could not perform x-rays because the claimant was seven weeks pregnant, and diagnosed the claimant as suffering from a shoulder contusion, and possible shoulder sprain. Dr. Ruotolo found the claimant to be temporarily totally disabled.
Dr. Ruotolo next examined the claimant on November 30, 2009, at which time the claimant complained of pain and tingling radiating down her arm. Upon examination, the claimant did not have any tenderness over the cervical spine. Dr. Ruotolo diagnosed the claimant as suffering from left shoulder rotator cuff tendonitis and cervical radiculopathy.
At an examination on January 14, 2010, the claimant complained of tenderness in the neck. An MRI of the claimant's cervical spine on February 22, 2010, showed straightening cervical lordosis, left sided foraminal disc herniation at C3-C4, bulging disc at C5-C6 and paracentral disc herniation at C6-C7. Dr. Ruotolo diagnosed the claimant as suffering from rotator cuff tendonitis with impingement syndrome and cervical radiculopathy.
The claimant was examined by the carrier's consultant, Dr. Nathan, on February 17, 2010. Dr. Nathan noted that the claimant complained of pain in her neck, back, left shoulder, left arm and left hand, with numbness in her left hand. Dr. Nathan opined that the claimant suffered from a left shoulder sprain, and her "injuries" were causally related. He stated that he wanted to review the claimant's left shoulder MRI.
The claimant was examined by Dr. Fontanetta on March 2, 2010. Dr. Fontanetta noted that he could not reproduce the claimant's cervical symptoms of spasms and tenderness upon examination. He diagnosed the claimant as suffering from mild left cervical radiculopathy.
At a hearing on August 31, 2010, claimant's attorney argued that Dr. Nathan's February 17, 2010, report should be precluded. In the resulting decision filed September 7, 2010, the WCLJ found prima facie medical evidence of a neck injury and directed the carrier to file an IME within 75 days. The WCLJ also held in abeyance the claimant's request to preclude the carrier's prior IME due to its failure to serve the claimant's attorney with the IME-3.
The claimant was examined by Dr. Nathan again on October 16, 2010. Dr. Nathan diagnosed the claimant as suffering from a left shoulder sprain. He opined that the claimant's neck injury was not causally related because she had full range of motion of the neck upon examination. The carrier provided Dr. Nathan with a copy of the claimant's left shoulder MRI and, in an addendum dated November 1, 2010, Dr. Nathan noted that the claimant had pre-existing arthritis of the left shoulder AC joint.
Dr. Nathan testified by deposition on December 6, 2010, that the claimant told him that she was struck in the left shoulder by a student's elbow. The claimant complained of pain in her neck, left shoulder and arm. Upon examination, the claimant's cervical spine was normal, although a February 3, 2010, EMG/NCV suggested C5-C6 radiculopathy. He also noted that examinations of the claimant's left shoulder and neck were normal at Dr. Nathan's second examination. Dr. Nathan opined that the accident, as described by the claimant, would not have caused acute herniated discs. He stated that the claimant has no current disability.
Dr. Fontanella testified by deposition on December 16, 2010, that the only time he examined the claimant was on March 2, 2010. The claimant told Dr. Fontanella that she injured her neck when a student bumped into her. He diagnosed the claimant as suffering from mild cervical radiculopathy, but noted that no objective tests could determine whether the claimant's cervical problems pre-dated her work accident. However, the onset of the claimant's symptoms indicated that her neck injury was causally related. Dr. Fontanella testified that herniated discs are not always caused by trauma.
Dr. Ruotolo testified by deposition on December 17, 2010, that he first examined the claimant on February 5, 2010. Prior to that date, the claimant was examined by Dr. Ruotolo's physician's assistant. He noted that, while the claimant had numbness and tingling in her arm which indicated cervical radiculopathy in November 2009, she did not complain of actual neck pain until his February 5, 2010, examination. At that time, the claimant had tenderness in the cervical spine and poor range of motion. The tenderness increased after February. Dr. Ruotolo testified that cervical problems can be degenerative. He noted that he was unable to produce the claimant's cervical symptoms upon examination. Dr. Ruotolo opined that the collision with the student may have resulted in whiplash and thereby caused the herniated discs.
At a hearing on January 31, 2011, claimant's attorney argued that all of Dr. Nathan's reports should be precluded as they violate WCL § 137. The claimant was then sworn in and testified that she collided with a student in the hall, but she could not recall what part of the student's body hit her. The WCLJ amended the claim to include a neck injury, and resolved the outstanding C-8.1s in favor of the providers. The WCLJ did not address the issue of whether Dr. Nathan's reports violated WCL § 137. The WCLJ's findings were memorialized in a decision filed February 10, 2011. The SIE filed a timely request for administrative review.
The Claimant's Neck Condition
The claimant bears the burden of establishing "a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 ; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ).'[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 , affd 90 NY2d 914 ; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 )" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ).
"[T]he resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation" (Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135 ; see Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d 1114 ). However, the Board "may not rely upon a medical opinion that is purely speculative rather than demonstrating a reasonable probability as to the cause of an injury. For a medical opinion regarding causation to qualify as competent evidence, it must signify a probability as to the cause of the injuries for which compensation is sought and be supported by a rational basis" (Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067  [quotation marks and citations omitted]).
In the present case, the claimant began experiencing radiculopathy symptoms two weeks after her work accident, but she did not experience neck pain until two months later. The carrier's consultant, Dr. Nathan, opined that the claimant's neck injury was not causally related because the mechanism of the accident would not have caused herniated discs, and the claimant's treating physician, Dr. Fontanella, could not determine whether the claimant had a pre-existing neck injury. However, nothing in the record suggests that the claimant ever experienced neck pain or radiculopathy symptoms prior to the accident. Thus, the medical evidence supports a finding that the claimant, at the very least, suffered an aggravation of a pre-existing neck condition as a result of her work accident, which is a compensable injury (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129  [citations omitted]).
Therefore, the preponderance of the evidence in the record supports a finding that the claim should be amended to include a neck injury.
Preclusion of the IME Reports
In her rebuttal to the SIE's application for review of the WCLJ's February 10, 2011, decision, the claimant argued that the WCLJ correctly amended the claim to include the neck, but that the WCLJ should have precluded Dr. Nathan's reports, as they violated WCL § 137. The Board Panel majority found that the issue of the preclusion of Dr. Nathan's reports was not preserved for review because claimant did not file a timely application for review of the WCLJ's February 10, 2011, decision. However, insofar as the WCLJ's decision amended the claim to include the neck, claimant was not aggrieved by that decision and was not obligated to seek administrative review of the decision to preserve the issue of the WCLJ's failure to make a determination on the merits of the evidentiary issue of whether Dr. Nathan's reports were admissible.
However, insofar as the preponderance of the evidence in the record, even taking into consideration Dr. Nathan's reports and testimony, supports the amendment of this claim to include the neck, the issue of whether Dr. Nathan's reports violated WCL § 137 is moot and need not be addressed.
ACCORDINGLY, the WCLJ decision filed on February 10, 2011, is AFFIRMED. No further action is planned by the Board at this time.