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The Full Board, at its meeting held on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 21, 2012, and amended on July 27, 2012.
The issues presented for Mandatory Full Board Review are:
In a decision filed on April 25, 2011, the Workers' Compensation Law Judge (WCLJ) disallowed the claim for a right knee injury.
In a Memorandum of Decision, filed on June 21, 2012, and amended on July 27, 2012, the Board Panel majority found that the claimant failed to timely file a claim for his right knee injury within two years of the July 18, 2007, accident. The majority further found that even if the claim had been timely filed, the claimant failed to demonstrate that his right knee condition is related to the accident of this file.
The dissenting Board Panel member would have found that the claim for the right knee was timely filed and that the claim should be amended to include the right knee.
The claimant filed an application for Mandatory Full Board Review on August 27, 2012.
The carrier filed a rebuttal on September 20, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The employer submitted a Form EC-2 (Employer's Report of Work-Related Accident/ Occupational Disease) on August 15, 2007, indicating that on July 18, 2007, the claimant was injured when "he pulled something in his back" while stepping off concrete onto a grassy area.
The claimant filed a Form C-3 (Employee's Claim for Compensation) on September 12, 2007, alleging that on July 18, 2007, while stepping off concrete into grass he extended his leg into a low area "jamming" his back. The claimant indicated that as a result of his accident he sustained "lower back pain with right leg pain."
The carrier submitted a Form C-7 (Notice That Right to Compensation is Controverted), controverting the claim on multiple grounds.
The claimant initially treated with Dr. Ashraf on August 6, 2007. Dr. Ashraf indicated that the claimant reported that the preceding month he was stepping off a pavement on to the grass and felt a sharp pain in his lower right back. The claimant presented with sharp, right sided back pain which radiated down his right leg. Dr. Ashraf diagnosed the claimant with lower back pain particularly on the right side with radiation to the right leg.
Thereafter, the claimant treated with Dr. Curtis. In a medical narrative dated August 13, 2007, a history was reported that the claimant injured his back on July 18, 2007, when he stepped off the pavement and onto the grass. The claimant described that his pain is occurring in the low back with sharp pain that radiates into his right lower extremity, into the posterior lateral thigh and stopping at the posterior knee. Dr. Curtis reported that the claimant had acute low back pain with clinical evidence of lumbar nerve root irritation on the right. Dr. Curtis continued to treat the claimant for issues related to the claimant's low back.
Dr. Curtis' nurse submitted a report dated August 22, 2008. At the top of the report there was a note that indicates that the claimant has low back pain and right leg pain, and the claimant "says the leg pain is new." The nurse indicated that the pain started yesterday, that the pain now shoots down into his right leg to about the right calf muscle, that it is worse when he walks on his right leg, and that the claimant indicated that the pain has happened before but it has not been this bad. The claimant was diagnosed with lumbago and sciatica. In a report dated August 24, 2008, it was noted that although the claimant is not 100%, he feels better than he did during his last visit. In a report dated October 20, 2008, Dr. Curtis indicated that the claimant was relatively asymptomatic following his acute episode.
The claimant underwent an MRI of his lumbosacral spine performed on October 2, 2007, the results were unremarkable.
The claimant was examined by the carrier's orthopedic consultant, Dr. Katzman, on November 8, 2007. Dr. Katzman reported a history that the claimant stepped off a pavement on uneven ground and felt a sharp pain in his low back. Dr. Katzman diagnosed the claimant with resolved lumbar strain that was causally related to the claimant's work accident assuming an accurate history. Dr. Katzman indicated that the claimant was working at the time of the examination, and opined that he may continue to do so and therefore he has no disability.
By Notice of Decision filed on November 20, 2007, the WCLJ, among other things, established the claim for a work-related injury to the claimant's low back.
On December 14, 2009, the claimant consulted with Dr. Kahn, a physiatrist, giving a history that when he stepped into the hole at work, there was a "jamming-type sensation through his right knee, hip and back." Dr. Kahn noted the claimant had right-sided back pain referred to the buttock, thigh and knee, which was now constant behind the knee. Dr. Kahn gave the claimant an injection in the right sacroiliac joint, at which time the claimant's radiating/referred pain began to resolve. An examination revealed that the claimant had full range of motion. Dr. Kahn continued to treat the claimant, and eventually suspected the claimant had an internal derangement of the right knee (see Dr. Kahn's March 5, 2010, report). An MRI performed on October 25, 2010, confirmed the claimant had a medial meniscus tear with chondromalacia.
Dr. Kahn submitted a report dated October 27, 2010, wherein he noted that the claimant "again reinforces that the symptoms began in 2007 when he stepped in a hole at work, sustaining injuries to both his knee and low back." Dr. Kahn diagnosed the claimant with central disc bulge at L5-S1 per MRI (March 5, 2010) with right lumbar radiculopathy, and MRI evidence of tear of medial meniscus with chondromalacia (October 25, 2010).
Dr. Kahn submitted a report dated May 12, 2011, wherein he indicated that the claimant advised him that his claim for the right knee was disallowed. In the report Dr. Kahn indicated that it remains his opinion that "the knee injury is directly and causally related to the date of injury of the lumbar spine disorder."
Starting June 9, 2011, and thereafter, Dr. Kahn changed his diagnosis of the claimant to causally related lumbar pain with radiation to lower limbs.
The claimant was examined by the carrier's orthopedic consultant, Dr. Connelly, on August 30, 2010, and in the corresponding report, Dr. Connelly diagnosed the claimant with chronic low back pain associated with the July 18, 2007, accident, neck pain dating back to May 15, 2001, and right knee pain. Dr. Connelly opined that the claimant's right knee condition was not causally related to the July 18, 2007, accident.
Dr. Connelly submitted an addendum report dated March 4, 2011, in which he opined that the claimant does have right knee pain and posterior horn meniscus tear, but they were not caused by the July 18, 2007, accident. Dr. Connelly reasoned that the work accident was three years prior and the information provided associated a back injury to the work accident and not a knee injury.
Dr. Connelly was deposed on March 11, 2011, and testified that pain in the back radiating to the knee is different than independent right knee pain. The pain from the claimant's back going into his knee would typically be consistent with an L4 nerve root irritation. After he examined the claimant's knee, he determined the claimant had a meniscus tear. However, based on the history and the reports he received he did not believe the claimant's meniscus tear was related to the July 18, 2007, accident. He felt that people do not usually have an event like the claimant's accident and develop two independent injuries. Stepping into a hole and having a fall can account for a number of potential injuries, so one has to look at the symptoms and treatment which occurred after the accident. Although it is possible that the claimant's accident would lead to a meniscal tear, it would not have been his first thought. Based upon the records he reviewed, he does not believe the claimant's meniscus injury was associated with the work accident. The records reflect that the claimant had a low back problem rather than a leg problem. Within a reasonable degree of medical certainty he would opine that based on the accident as described to him, the claimant had a back injury after he stepped in a hole with probably some mild L4 nerve root irritation. When a person has a posterior horn medical meniscus tear, it is a very specific pain that the person can point to and say "it hurts right here." With a meniscal tear, the person would not offer a vague complaint in terms of where the pain is coming from.
By reserved decision filed on April 25, 2011, the WCLJ disallowed the claimant's request to amend the claim to include the right knee. The WCLJ further found that none of the documents filed within two years of the claimant's accident (i.e. the claimant's Form C-3 and the medical reports) provide sufficient information to reflect a claim for a separate right knee injury, and therefore the claimant failed to file a timely claim for a right knee injury.
"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 ).
The carrier's orthopedic consultant, Dr. Connelly, credibly opined that the claimant's knee injury was not causally related to the July 18, 2007, accident. Dr. Connelly opined that the records reflect that the claimant had a low back injury, rather than a leg injury, as the result of the July 18, 2007, accident. Dr. Connelly noted that the claimant's initial treatment all concerned his back and radicular symptoms. He explained that when a person sustains a posterior horn medial meniscus tear, like the claimant, it causes a very specific pain, and a patient can point precisely to the spot where the pain is. Therefore, a complaint of pain radiating from the back down the leg would not be indicative of that particular injury.
The opinion of the claimant's treating physiatrist, Dr. Kahn, that the claimant's knee injury was causally related to the claimant's July 18, 2007, work accident was less credible. Dr. Kahn variously diagnosed cervical radiculopathy, disorders of the sacrum, sacroiliac and right hamstring dysfunction until February 25, 2010, when he diagnosed "unspecified internal derangement of the knee." Initially, Dr. Kahn's narrative reports did not specifically draw a causal link to the July 18, 2007, accident beyond reflecting claimant's opinion of causal relationship. Dr. Khan first diagnosed the claimant with a medial meniscus tear on October 27, 2010. However, Dr. Kahn's May 12, 2011, report, after the claim for a right knee injury had already been disallowed by the WCLJ, was the first report the doctor submitted that opined that the claimant's knee injury was causally related to the claimant's July 18, 2007, accident. Dr. Kahn appears to have subsequently abandoned that opinion. Since June 9, 2011, Dr. Kahn has diagnosed the claimant with lumbar pain with radiation to lower limb(s).
Based on the preceding, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant failed to meet his burden of showing that his knee injury was causally related to his July 18, 2007, accident. Therefore, the claim for a right knee injury is disallowed.
WCL § 28
WCL § 28 requires that a claim for compensation be filed within two years of the date of the accident. For a written notice to mark the filing of a claim for compensation, that notice must state the facts of the injury with reasonable certainty and it must be reasonably inferred that a claim for compensation is being made (see Matter of Kaplan v Kaplan Knitting Mills, Inc., 248 NY 10 ).
A form C-4 medical report, in and of itself, does not meet the filing requirement of WCL § 28 (Matter of Bielat v Alco Prods., 28 AD2d 747 ). However, a C-4 medical report may mark the filing of a claim where it contains information sufficient to provide the Board with the facts of the injury and from which it might be reasonably inferred that a claim for compensation was being made (Matter of Tagliavento v Borg-Warner Auto, 252 AD2d 753 ).
In the instant case, the claimant initially filed a timely Form C-3 alleging lower back pain with right leg pain. The medical records filed within two years of the date of accident show that the only pain the claimant complained of with regard to the right leg was radiating pain. Over two years after the claimant's accident, the claimant was diagnosed with a medial meniscus tear to the right knee. Although, Dr. Kahn opined in the May 12, 2011, report that the claimant's knee injury was causally related to the July 18, 2007, accident, as discussed above, not only was Dr. Kahn's opinion not credible, but he appears to have subsequently abandoned that opinion, as he changed the diagnosis to lumbar pain with radiation to lower limb(s).
Neither the Form C-3 nor the medical reports filed within two years of the accident provided sufficient information to reflect a claim for a discrete right knee injury. As noted by Dr. Connelly, a back injury with radiating pain down the claimant's leg is very different than a traumatic knee injury.
Based on the preceding, the Full Board finds that the record further supports a finding that the claim for a right knee injury is time-barred by WCL § 28, as the claimant failed to file a claim for a right knee injury within two years of the July 18, 2007, accident date.
ACCORDINGLY, the WCLJ decision filed on April 25, 2011, is AFFIRMED. The claim for the right knee injury is disallowed. No further action is planned by the Board at this time.