Case # G0178517
Date of Accident: 01/18/2010
District Office: Hauppauge
Employer: ITT Industries
Carrier: Ace Indemnity Insurance Co
Carrier ID No.: W054696
Carrier Case No.: 375C756735-1
Date of Filing of Decision: 10/10/2012
Claimant's Attorney: Sherman , Federman, Sambur & McIntyre LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on September 11, 2012, considered the above-captioned case for Mandatory Full Board Review of the Amended Board Panel Memorandum of Decision filed on October 11, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim should be amended to include a consequential right knee injury.

The Workers' Compensation Law Judge (WCLJ) disallowed the consequential right knee claim, finding that the claimant's complaints of right knee pain were insufficient evidence upon which to amend the claim. The WCLJ also directed that the claimant may reopen the case upon submission of prima facie medical evidence of a neck injury.

The Board Panel majority affirmed the WCLJ's disallowance of the consequential right knee claim. However, the Board Panel majority amended the WCLJ's decision to find prima facie medical evidence of a neck injury.

The dissenting Board Panel member would amend the claim to include a consequential right knee injury.

The claimant filed an application for Mandatory Full Board Review on October 28, 2011.

The carrier filed a rebuttal on November 23, 2011

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

FACTS

The claimant, a welder, sustained a left knee injury when he was struck by a vehicle on the employer's premises on January 18, 2010. The carrier did not dispute the claim.

The claimant filed a Form C-3 (Employee Claim) on May 12, 2010, stating that he sustained a left knee injury, and that he had right knee pain from favoring his left knee. The claimant also noted that he had a previous injury to the left knee.

Claimant began treating with Dr. Barzideh for the injury resulting from his January 18, 2010, accident on January 21, 2010. In his initial report, Dr. Barzideh stated that he had previously treated claimant, "most recently about three years ago for a left knee injury."

In a May 14, 2010, claimant's treating physician, Dr. Coladner, noted that claimant was involved in a "[m]otorcyle accident five years ago with fracture to the left knee." Dr. Coladner indicated that in addition to pain in his left knee and neck, claimant "reports right knee pain that developed approximately three weeks ago and is getting worse." Dr. Coladner did not offer any diagnosis with respect to the right knee and did not offer an opinion regarding the cause of claimant's right knee symptoms.

In a June 3, 2010, report, Dr. Barzideh indicated that claimant "states that he was favoring the right knee until the left knee was" treated with injections. Dr. Barzideh diagnosed claimant with "[r]eactive right knee pain and discomfort due to altered mechanics and gait as a result of the left knee injury." Dr. Barzideh opined that "the right knee is consequential to the left knee injury from January 2010…"

In a decision filed June 24, 2010, the WCLJ established the claim for a left knee injury, found prima facie medical evidence of a consequential right knee injury, and noted that the claimant raised the issue of whether he also sustained a neck injury.

Claimant was examined by the carrier's consultant, Dr. Wert, on June 8, 2010. In his report, Dr. Wert noted that "claimant was observed to exhibit a normal gait and was independent in ambulation." Dr. Wert reexamined claimant on September 14, 2010, and in his resulting report, wrote:

I find no evidence of a consequential right knee injury. Today's examination of the right knee was entirely within normal limits. The claimant presented with unaltered gait and re-evaluation by his treating physician documents that he states he no longer has knee pain. In addition, when examined by me on 6/10/10 [sic] he did not offer complaints of right knee pain.

Dr. Barzideh, testified by deposition on December 21, 2010, that he first examined the claimant on January 21, 2010. The claimant complained of left knee pain, but the left knee appeared stable upon examination. An x-ray revealed an abnormal lateral tibial plateau. Dr. Barzideh testified that he treated the claimant three years prior for a left knee injury, but then stated that he was unsure whether he treated the claimant for a left knee injury. Dr. Barzideh also noted that a February 7, 2010, MRI of claimant's left knee showed a bony irregularity along the medial tibial plateau from a previously healed fracture, and degenerative changes, but no tear. He noted that the claimant first complained of right knee pain on June 3, 2010. According to Dr. Barzideh, claimant "stated that he was favoring the right knee because the left knee was bothering him, and on examination he had some pain overlying the medical joint. He had some patellofemoral crepitus" (p. 12). Dr. Barzideh diagnosed the claimant as suffering from reactive right knee pain due to altered mechanisms and gait. He noted that he did not see the claimant again after this examination, and that he examined but did not treat the claimant's right knee. Upon cross-examination, Dr. Barzideh testified that he did not document an altered gait, but stated that it was "possible" that he observed the claimant favoring the left knee. He noted that the only finding regarding the right knee was the claimant's complaints of pain.

Dr. Wert testified by deposition on December 23, 2010, that he examined the claimant twice. At a June 8, 2010, examination, the claimant complained of constant, sharp pain in his left knee. Dr. Wert stated that although the x-ray and MRI revealed significant findings, they were related to the claimant's prior injury because degenerative changes would not have developed in the short period between the date of accident, and the date the tests were performed. Upon examination, the claimant had a normal gait, and did not have tenderness or pain. Dr. Wert noted that patella grinding was present, but the claimant had a full range of motion. The right knee was normal. He diagnosed the claimant as suffering from a sprain/strain of the left knee, and aggravation of his pre-existing degenerative changes and prior injury.

At a hearing on January 31, 2011, the WCLJ disallowed the right knee claim, noting that little medical evidence supported a finding of a consequential right knee injury, and the carrier's consultant opined that the claimant's right knee pain was due to his prior non-work-related injury. The WCLJ also directed that the claimant may seek to reopen the claim with clarifying prima facie medical evidence of a neck injury. The WCLJ's findings were memorialized in a February 3, 2011, decision.

LEGAL ANALYSIS

The courts have long recognized that a consequential injury is compensable, provided there is a sufficient causal nexus between the initial work-related injury for which a claim is established and the subsequent injury (see e.g. Matter of Barre v Roofing & Flooring, 83 AD2d 681 [1981]; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215AD2d 943 [1995], lv den 87 NY2d 806 [1996], Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]).

In the present case, Dr. Barzideh opined that the claimant suffers from a consequential right knee injury caused by an altered gait, but crucially none of the medical reports in the record indicate that the altered gait is due to his left knee injury. His opinion was based solely upon the claimant's complaints of pain, and assertion that he had favored his right knee. Dr. Barzideh never indicated in any of his reports that claimant walked with an altered gait, and although he testified that it was possible that he saw the claimant limping, he noted that he never documented that the claimant was walking with an altered gait.

Dr. Wert credibly testified that the claimant did not suffer a consequential right knee injury. Dr. Wert noted that upon examining claimant on June 8, 2010, claimant had a full range of motion in his left knee, and was walking without a limp.

Therefore, the preponderance of the evidence in the record supports a finding that the claimant did not suffer a consequential right knee injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 3, 2011, is MODIFIED to find claimant has produced prima facie medical evidence for a neck injury and that the carrier's C-8.1 objection is held in abeyance. The decision is otherwise affirmed. No further action is planned by the Board at this time.