The Full Board, at its meeting held on September 11, 2012, considered the above-captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 14, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) amended the claim to include a consequential, causally related injury to the right shoulder, and found the claimant to have a temporary total disability.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would have reversed the WCLJ's decision, disallowed the claim for a consequential right shoulder injury and rescinded awards. The dissent found that the medical evidence with regard to causal relationship of the right shoulder was too speculative to establish a consequential claim.
The carrier filed an application for Mandatory Full Board Review on March 6, 2012.
The claimant filed a rebuttal on March 30, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
Claimant, a patient care technician, injured his left shoulder lifting a patient. This claim was established for an injury to the claimant's left shoulder by a decision filed August 20, 2008. Claimant underwent arthroscopic surgery on his left shoulder on August 12, 2008, and March 10, 2009. It does not appear that claimant had returned to work.
The first mention of right shoulder pain is in the January 22, 2009, C-4.2 report of Dr. Marini. The record with regard to the contested issues has been developed through the testimonies of the claimant's treating pain management physician, Dr. Haftel, the claimant's treating orthopedic surgeon, Dr. McMahon, and the carrier's consulting orthopedic surgeon, Dr. Pitman.
Dr. Haftel testified that he first treated the claimant on October 7, 2009. The claimant gave a history of injuring his left shoulder at work on April 2, 2008. He had undergone left shoulder surgery. The claimant presented with bilateral peri-cervical and trapezius tenderness. The doctor diagnosed the claimant as suffering from, intra alia, right shoulder internal derangement. The claimant was last seen on April 30, 2010. The claimant presented with tenderness over the bilateral acromioclavicular joints of the shoulders, as well as trapezius tenderness. When asked whether he had an opinion concerning what caused claimant's right shoulder condition, Dr. Haftel responded that "as the patient had explained to me, it was from over use of the right shoulder after - because of all the left shoulder pain" (Deposition, 7/2/10, pp 9-10). The doctor testified that he discussed the cause of right shoulder injury with the claimant but did not memorialize it in his medical notes. The doctor noted that the claimant was in severe pain and was on a high dose of pain medication including morphine. The doctor opined that the claimant was totally disabled from his job and had an overall moderate to marked disability. Notwithstanding his opinion of a partial disability, the doctor further noted that the side effects from the opioid medications would make it "very difficult" for the claimant to perform even sedentary work.
Dr. McMahon testified that he first treated the claimant on March 29, 2010. The claimant presented on that day with right shoulder pain, which the claimant stated that he had developed subsequent to surgeries and treatment of the compensable left shoulder condition. An MRI of the claimant's right shoulder revealed a rotator cuff tendinopathy and bursitis. The doctor opined that the claimant's right shoulder condition "was a consequence of overuse because of his injury and two surgeries on the left shoulder." He further opined that the claimant required right shoulder surgery. Dr. McMahon disagreed with the carrier's consultant, Dr. Pitman, who opined in his report that a person cannot have overuse syndrome when the injury is to the non-dominant arm. The doctor opined that a person could sustain a consequential injury to the non-dominant arm by engaging in repetitive activities, overhead reaching, or forceful activities. The doctor further opined that the claimant is totally disabled from all work and has been so throughout his course of treatment. He stated that the claimant cannot perform sedentary work as he is on vicodin and valium for the pain. The claimant was last examined earlier that day.
Dr. Pitman testified that he examined the claimant on seven occasions. The history given to him by the claimant on November 11, 2009, and January 27, 2010, was that the right shoulder pain started a few weeks after the original injury. Based upon these examinations, the history received from the claimant, and a review of the claimant's medical records, Dr. Pitman noted that the claimant has osteoarthritic changes and bursitis of the right shoulder that is not indicative of overuse. The doctor opined that the claimant's right shoulder condition is unrelated to the compensable left shoulder condition. The doctor stated that since the claimant is right hand dominant, it is unlikely that the injury to the non-dominant left shoulder caused overuse and pain in the dominant right shoulder. The doctor further opined that the claimant's left shoulder condition is amenable to a 25% schedule loss of use finding. On cross-examination, Dr. Pittman conceded that if the right shoulder is found to be compensable, then the claimant's left shoulder is not schedulable.
In a decision filed October 4, 2010, the WCLJ amended the claim to include a consequential right shoulder injury, made awards from June 11, 2009, forward at a temporary total disability rate, and authorized right shoulder surgery. The WCLJ noted that he found the opinions of the claimant's treating physicians to be more credible than the opinion of the carrier's consultant.
In its application for Mandatory Full Board Review, the carrier asserts that the medical evidence does not support an amendment of the claim to include a consequential right shoulder injury. The carrier also requests that the Full Board rescind the awards made at the continuing temporary total disability rate.
In rebuttal, the claimant contends that the Board Panel properly affirmed the WCLJ's decision finding that the claimant suffered a consequential right shoulder injury and has a continuing temporary total disability.
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 ). "Whether a claimant's disability consequentially arose from injuries sustained in a previous accident is a factual issue left for resolution by the Board (see Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 ; Matter of Trickel v Judski Assoc., 247 AD2d 778 ). A causal connection is indispensable to the establishment of any workers' compensation claim, and this is as true of a consequential injury claim as it is a claim of direct injury (see Matter of Senecal v Bendix, 29 AD3d 1232 ; see generally Matter of Scofield, 290 AD2d 845; Matter of Petillo v Wyckoff Hghts. Hosp., 288 AD2d 515 )" (Matter of Atkinson v Joseph Baldwin Constr., 43 AD3d 1240 ).
Here, both Dr. Haftel and Dr. McMahon credibly reported and testified the claimant's right shoulder condition resulted from overuse caused by the compensable left shoulder injury. Therefore, the claim is amended to include a consequential right shoulder injury.
Degree of disability
Based on the opinions of Dr. Haftel and Dr. McMahon, the Full Board finds that claimant had a causally related temporary total disability as of June 11, 2009.
ACCORDINGLY, the WCLJ decision filed on October 4, 2010, is AFFIRMED. No further action is planned by the Board at this time.