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 20, 2011.
The issue presented for Mandatory Full Board Review is whether the claim should be amended to include bilateral knee injuries.
In a decision filed on October 19, 2010, the Workers' Compensation Law Judge (WCLJ) amended the claim to include both knees.
In a Memorandum of Decision filed December 20, 2011, the Board Panel majority affirmed the WCLJ's decision, noting that the claimant's treating physician had submitted a report with an opinion of causal relationship, and finding that the self-insured employer (SIE) failed to submit any contrary evidence and failed to request an opportunity to cross-examine the claimant's physicians.
The dissenting Board Panel member would have found insufficient evidence to amend the claim to include the knees.
In its application for Mandatory Full Board Review filed on January 18, 2012, the SIE argues that the Board Panel majority decision is not supported by any contemporaneous medical evidence. The SIE argues that claimant's treating physician's opinion of causal relationship is not credible since it is based on a history reported to him by the claimant "nearly two years post accident and over one year post intervening accident."
In a rebuttal filed with the Board on January 27, 2012, the attorneys for the claimant request that the Board Panel majority decision be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim, WCB Case #20805356, was indexed when a C-2 form and a C-669 form were filed by the SIE on August 18, 2008. In its C-2, the SIE reported that the claimant injured his hands and fingers while working as a correction officer on February 28, 2008. The C-2 indicates that the claimant was injured "[w]hile restraining/handcuffing a violent inmate…when they fell to the floor." In its C-669, the SIE reported that the claim for injuries to the hands/fingers is not disputed but that payment has not begun because the claimant has no lost time. In an administrative decision filed on January 15, 2009, the claim was established for bilateral hand injuries that resulted from an accident on February 28, 2008. Claimant did not lose any time from work as result of the injury.
On December 30, 2009, the claimant filed a C-3 form dated December 18, 2009, to report that he was injured at work on February 28, 2008, when he was trying to restrain an inmate and they fell to the ground. The claimant reported injuries to both hands and both knees as a result of the incident.
There is no evidence that the claimant received any treatment for the injuries resulting from his February 28, 2008, accident prior to September 26, 2008. Dr. Sarkis, the claimant's treating physician, submitted a C-4 report of an examination on September 26, 2008, and noted a history that the claimant was injured at work on February 28, 2008, when he fell on the ground and injured both hands. Dr. Sarkis diagnosed pain in the joint involving hand, swelling of limb, and contusion of hand. Dr. Sarkis opined that the claimant had a total disability, causally related to the history reported by the claimant. The report does not indicate that the claimant reported any injury to his knees. The case file in WCB Case #20805356 contains no evidence of any further treatment until March 9, 2009.
Claimant suffered additional work-related injuries on November 19, 2008, when he was assaulted by an inmate. A claim based on this incident is established for injuries to the left shoulder, both knees, and neck (WCB Case #G0098963). The record in WCB Case #G0098963 contains a C-4.0 report of the claimant's treatment with Dr. Cabatu on February 13, 2009. According to the C-4.0, the claimant reported to Dr. Cabatu that he injured his neck, his left shoulder, and both of his knees at work on November 19, 2008, when he was assaulted by an inmate and fell down.
The claimant began physical therapy treatment with Dr. Santiago on March 9, 2009. In a C-4 report dated April 6, 2009, filed in this claim (WCB Case #G0098963), Dr. Santiago diagnosed a hand injury, but in the attached notes of treatment on dates between March 9, 2009, and March 16, 2009, Dr. Santiago noted that the claimant had reported pain and stiffness in several areas including the right and left knees.
Dr. Kyriakides, the claimant's treating physician, submitted a C-4.0 report of an examination on January 5, 2010, in which he diagnosed internal derangement of the knee and derangement of the hand joint. Dr. Kyriakides opined that the claimant has a 100% temporary impairment, and noted that an MRI of the left knee reveals soft tissue swelling as well as effusion and a baker cyst; an MRI of the right knee reveals partial tear of the anterior cruciate ligament, along with a joint effusion and abnormal signals along the medial meniscus. Dr. Kyriakides opined that the incident reported by the claimant is the competent medical cause of his injuries. An attached narrative report signed by M. Zakhary, RPA, and Dr. Kyriakides, offers a history of claimant having been injured on February 28, 2008, while working as a corrections officer, when he "fell directly against his bilateral knuckles and bilateral knees." The narrative report noted that claimant denied any pre-existing trauma or illness to these areas, but did report that he had a subsequent work injury on November 19, 2008, when he injured his left shoulder and both knees. He stated that he continued to have ongoing discomfort as a result of the accident on February 28, 2008, but continued to work despite his symptoms because of his financial situation. Dr. Kyriakides noted that the MRIs that revealed findings in the knees were performed on October 8, 2009. The claimant reported instability and buckling of the bilateral knees since the February 2008 accident at work, and worsening of symptoms from the November 2008 accident. Dr. Kyriakides found that the claimant "remains partially disabled as a result of the work-related injury that occurred February 28, 2008, and totally disabled from a subsequent work-related injury that occurred November 19, 2008."
On May 26, 2010, the claimant submitted an RFA-1 (Claimant's Request for Further Action) to request a hearing. Attached to the RFA-1 is the narrative report of Dr. Kyriakides' evaluation on January 5, 2010.
In a decision filed on July 20, 2010, the WCLJ found that WCL § 28 does not bar the claim for injuries to the bilateral knees, directed the SIE to produce a consultant's report on the issue of causally related knees at or before the next hearing, if it wished to do so, and continued the case.
Dr. Denton, the SIE's consulting orthopedic surgeon, submitted an IME-4 report of an examination on September 1, 2010, and noted that the claimant reported a work related accident on February 28, 2008, but "did not elaborate on the mechanism of the injury sustained." Dr. Denton noted that the medical records indicate that the claimant reportedly fell and sustained injuries to his hands and knees. Dr. Denton further noted his review of the narrative report of Dr. Kyriakides' evaluation on January 5, 2010, when the claimant reported a subsequent work related accident on November 19, 2008, which worsened his symptoms. Dr. Denton diagnosed causally related bilateral hands sprain/strain - resolved, but was unable to provide any opinion of causal relationship for the knees. Dr. Denton noted that the claimant has no current complaints in his knees and that the only medical note for his review was Dr. Kyriakides' report from January 5, 2010, "nearly two years post accident of record (confirming a subsequent injury to bilateral knees)." Dr. Denton deferred comment on causality of the knees until he has sufficient medical evidence that the claimant injured both knees at the time of the accident on February 28, 2008.
A hearing was held on October 14, 2010, and the claimant's attorney noted that Dr. Denton failed to provide any opinion on the issue of causally related knees. The WCLJ noted that although the SIE had an opportunity to produce an IME, it did not do so. The WCLJ amended the claim to include bilateral knees, and noted the SIE's objection to the decision. The SIE never requested an opportunity to cross-examine the claimant's treating physician.
The WCLJ's findings were set forth in a decision filed on October 19, 2010, and the SIE filed an application for administrative review.
"It [i]s claimant's burden to establish 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 ). A finding of causal relationship "must not rely on a speculative medical opinion" (Matter of Spinnato v GE Advanced Materials, 95 AD3d 1466 ).
Here, although the claimant had complained to Dr. Santiago of knee pain and stiffness in March 2009, Dr. Santiago has not provided any diagnosis or opinion of causal relationship related to the knees. Further, on February 13, 2009, nearly one month prior to Dr. Santiago's treatment, the claimant was examined by Dr. Cabatu and had complained of bilateral knee pain related to the work accident that occurred on November 19, 2008. There is no indication in Dr. Cabatu's report that the claimant had reported that he had previously injured his knees at work in February 2008. Also, in WCB Case #20805356, there is no medical evidence of a diagnosis or opinion of causal relationship related to the knees until January 5, 2010, when Dr. Kyriakides noted that the claimant reported that he also injured his bilateral knees in a work accident that occurred on November 19, 2008. However, there is no evidence that Dr. Kyriakides examined the claimant prior to the November 2008 incident. Further, while Dr. Kyriakides noted the findings of the MRIs of the claimant's knees, those tests were performed on October 8, 2009, well after the claimant's intervening accident in November 2008.
Therefore, although Dr. Kyriakides opined that claimant's knee injuries were causally related to the February 28, 2008, accident, his opinion is not reliable since there is no contemporaneous medical evidence in the record to support the claimant's report of injury to his knees on February 28, 2008 (see Matter of Spinnato v GE Advanced Materials, 95 AD3d 1466 ). Further, Dr. Kyriakides' evaluation of the claimant on January 5, 2010, at which time he provided the first opinion that the claimant's knee injuries were causally related to the February 28, 2008, accident, was over one year after an intervening accident that occurred in November 2008, during which the claimant reportedly injured his knees. While Dr. Kyriakides acknowledged the intervening accident in his report, he failed to provide any credible explanation for his opinion that the claimant's knee injuries were related to the February 28, 2008, accident, rather than the November 19, 2008, accident.
Therefore, the Full Board finds that there is insufficient credible evidence in the record to support Dr. Kyriakides' opinion that the claimant's knee injuries are causally related to the accident that occurred on February 28, 2008.
Accordingly, the WCLJ decision filed October 19, 2010, is MODIFIED to rescind the amendment of the claim to include both knees. The rest of the WCLJ decision remains in effect. No further action is planned by the Board at this time.