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 August 6, 2012.
The issue presented for Mandatory Full Board Review is whether the claim should be amended to include a causally related right shoulder injury.
In a reserved decision filed on December 9, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claimant did not injure her right shoulder in an accident at work on March 4, 2010.
In a Memorandum of Decision filed August 6, 2012, the Board Panel majority modified the WCLJ's decision to find that the claimant did sustain a causally related right shoulder injury.
The dissenting Board Panel member would have affirmed the WCLJ's decision to find that the claimant did not sustain a causally related right shoulder injury.
In their application for Mandatory Full Board Review filed on September 4, 2012, the attorneys for the carrier argue that the decision to amend the claim to include a causally related right shoulder injury is not supported by the evidence in the record.
In a rebuttal filed with the Board on September 26, 2012, the attorneys for the claimant request that the majority decision be affirmed since the medical evidence in the record supports establishment of the right shoulder injury.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for injuries to the right hand and right arm that resulted from an accident on March 4, 2010.
On March 15, 2010, the employer filed a C-2 (Employer's Report of Work-Related Injury/Illness) to report that the claimant injured her right hand and right forearm while she was working on March 4, 2010.
On April 13, 2010, the claimant filed a C-3 (Employee Claim) to report that she was injured while working as a senior court officer on March 4, 2010. The claimant alleged that the injury occurred when she tripped on a chair while helping another officer restrain an inmate and she twisted her right hand and right arm as he was resisting. She reported injuries to her right hand, right arm, shoulder, neck and right knee.
The record contains a copy of a report of emergency room treatment on March 4, 2010, which contains no mention of injury or complaints of pain in the right shoulder (ECF Doc ID #167822872, p. 2).
Dr. Uh, the claimant's treating physician, submitted a C-4.2 of an examination on March 8, 2010, and in the attached narrative report, noted that the claimant denies any shoulder or neck pain (ECF Doc ID #167163669).
Dr. Uh submitted another C-4.2 report of an examination on March 18, 2010, and did not indicate that the claimant made any complaints related to the right shoulder (ECF Doc ID #167163668). However, attached to Dr. Uh's report of an examination on May 3, 2010, is an "accident information sheet" dated March 8, 2010, which indicates that the claimant reported that as a result of the accident on March 4, 2010, she injured her right knee; her right hand, fingers and wrist; her forearm; her elbow; her shoulder; and her neck (ECF Doc ID #167163666).
The first medical report to mention the right shoulder was a C-4.2 form of an examination on September 24, 2010, in which Dr. Kupersmith, the claimant's treating physician, requested an authorization for an x-ray of the right shoulder. The report provides an injury date of March 4, 2010, but does not include any diagnosis or history of injury related to the right shoulder.
In independent medical examination (IME) reports dated November 9, 2010, and January 11, 2011, the carrier's orthopedic consultant, Dr. Bregman, found that claimant's right shoulder injury "is unrelated to the accident of record."
In a decision filed on August 10, 2011, the WCLJ found prima facie evidence of a right shoulder injury, and directed the parties to obtain medical testimony on the issue of the right shoulder injury.
Dr. Bregman testified on October 25, 2011, that he examined the claimant numerous times in relation to her March 4, 2010, work accident, on behalf of the carrier. The claimant reported that she was injured while attempting to restrain a defendant who was resisting being handcuffed. There was a scuffle and some kind of altercation, but Dr. Bregman did not know the exact mechanism. He would expect that there would be some degree of twisting in the claimant's arm. The claimant made no complaints of right shoulder pain at the first two IMEs (June 17, 2010, and August 24, 2010). However, at the third examination, on November 9, 2010, the claimant had complaints of right shoulder pain and his examination of the right shoulder revealed decreased range of motion and tenderness. Dr. Bregman opined that the claimant's right shoulder condition was not causally related to the March 4, 2010, work accident due to the lack of complaints of right shoulder pain until many months after the work accident. Under cross-examination, Dr. Bregman noted that when there is a significant injury which is the primary concern, it is possible for the person to ignore pain in other areas. It would also be reasonable for someone having their arm twisted to pull away and cause a straining of the shoulder.
Dr. Kupersmith testified on November 2, 2011, that he first treated the claimant on May 14, 2010, as the result of a referral from Dr. Uh. The doctor stated that he treated the claimant monthly and performed the claimant's right hand surgery on August 5, 2010. Dr. Kupersmith testified that the claimant first complained of right shoulder pain on September 24, 2010, and that he examined the claimant's right shoulder for the first time on that day. Dr. Kupersmith believed that claimant suffered from impingement or tendonitis in her right shoulder, and it was possible that she sustained a rotator cuff tear. On the issue of causal relationship, Dr. Kupersmith stated that the claimant advised that she had right shoulder pain since the date of accident. He told the claimant that he did not doubt that she injured her shoulder at the time of the accident, but he needed documentation of the first treatment. He diagnosed shoulder impingement or tendinitis and twisting of the arm and shoulder with a possible rotator cuff tear.
After Dr. Kupersmith's testimony, the parties provided oral summations on the record.
In a reserved decision filed on December 9, 2011, the WCLJ found that the claimant did not injure her right shoulder in an accident at work on March 4, 2010. The WCLJ noted that Dr. Kupersmith's opinion of causal relationship was not based on a contemporaneous report of a right shoulder injury, and that Dr. Bregman found that the right shoulder injury was non-traumatically caused and did not relate to the accident of March 4, 2010. An amended reserved decision was filed on December 13, 2011, solely to add a party of interest.
In this case, the claimant noted a shoulder injury on her C-3 form when it was originally filed on April 13, 2010, just over one month after the accident occurred. Also, although there is no evidence that the claimant reported shoulder pain at the emergency room on March 4, 2010, there is evidence in the record that the claimant reported right shoulder pain on the date of her initial treatment with Dr. Uh on March 8, 2010. This documentation supports a finding that the claimant had an accidental right shoulder injury on March 4, 2010.
"It is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920  [citations and internal quotation marks omitted]).
Here, Dr. Kupersmith's opinion is based on a history that the claimant had complained about her right shoulder since the accident occurred. The record contains the claimant's accident information sheet completed at Dr. Uh's initial treatment on March 8, 2010, which indicated a right shoulder injury. As such, Dr. Kupersmith's opinion of causal relationship supports a finding that claimant sustained a causally related right shoulder injury. The concessions made by Dr. Bregman during his testimony provide further support for a finding of causally related right shoulder injury. Specifically, during his testimony, Dr. Bregman stated that while he did not know the exact mechanism of injury, he would expect that there would be some degree of twisting in the claimant's arm. Further, while the claimant made no complaints of right shoulder pain at Dr. Bregman's first two IMEs, at the third examination she did complain of right shoulder pain and his examination at that time revealed decreased range of motion and tenderness in the right shoulder. On cross-examination, Dr. Bregman conceded that when there is a significant injury which is the primary concern, it is possible for the person to ignore pain in other areas. Finally, Dr. Bregman conceded that it would also be reasonable for someone having their arm twisted to pull away and cause a straining of the shoulder.
Therefore, the Full Board finds that the claimant has a right shoulder injury causally related to the accident at work on March 4, 2010.
ACCORDINGLY, the WCLJ reserved decision filed December 9, 2011, as amended by the reserved decision filed on December 13, 2011, is MODIFIED to find that the claimant sustained a compensable right shoulder injury on March 4, 2010. No further action is planned by the Board at this time.