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The Full Board at its meeting on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 30, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant sustained a compensable back injury as a result of an accident on September 21, 2009.
In a reserved decision filed on March 28, 2011, the Workers' Compensation Law Judge (WCLJ) amended the claim to include the back.
The Board Panel majority reversed the WCLJ's decision, finding that the claimant does not have a causally related or consequential back injury.
The dissenting Board Panel member would have affirmed the opinion of the WCLJ.
The claimant filed an application for Mandatory Full Board Review on August 30, 2012, requesting that the claim be amended to include the back.
The self-insured employer (SIE) filed a rebuttal on September 14, 2012, arguing that the claimant's application for Mandatory Full Board Review was untimely and that the decision of the Board Panel majority should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a firefighter employed by the SIE, filed a C-3 (Employee Claim) with the Board on December 18, 2009, alleging that he sustained a left hip labral tear on September 21, 2009, while engaged in a rope escape training exercise. The claimant asserted that while going out of a second floor window head first with full fire gear on, his left leg impacted a concrete wall ten times and he was heavily bruised and overstretched and extended. There is no indication in the C-3 form that the claimant injured his back.
The SIE did not controvert the claim, as evidenced by its filing of a C-669 (Employer's Report of Work-Related Injury/Illness) on December 10, 2009.
The SIE's orthopedic consultant, Dr. Buckner, examined claimant on January 21, 2010, with respect to his left hip injury. Dr. Buckner was subsequently asked by the SIE to offer an opinion whether claimant's complaints of pain and soreness in his low back were causally related to his September 21, 2009, accident. In a February 3, 2010, addendum report, Dr. Buckner opined that the claimant did not injure his back as a result of the September 21, 2009, accident.
In a February 5, 2010, C-4.0 (Doctor's Initial Report), Dr. Habif opined that claimant's lumbosacral radicular syndrome, which caused back pain and numbness/tingling in the leg, occurred on September 21, 2009, while working as a firefighter for the SIE. In subsequent C-4.2 reports for examinations on March 19, 2010, and March 24, 2010, Dr. Habif specifically opined that the claimant's back condition was causally related.
In a March 5, 2010, C-4.2, Dr. Cean opined that claimant's back pain was causally related to the incident that occurred at work on September 21, 2009.
In a decision filed on March 26, 2010, this claim was established for a work-related left hip injury, the claimant's average weekly wage was set at $1,929.05 per payroll, no medical evidence was found for the period from September 22, 2009, to November 20, 2009, and awards were issued November 20, 2009, to March 24, 2010, at the temporary partial disability rate of $600.00, a direction was made to reimburse the SIE, a fee in the amount of $950.00 was awarded to the claimant's attorney, medical treatment was authorized, surgery and post-surgery physical therapy was authorized, and no further action was directed.
The claimant underwent arthroscopic hip surgery on March 29, 2010, which was performed by Dr. Rodriguez. While Dr. Rodriguez treated the claimant primarily for his hip condition, he did note in a medical narrative dated August 21, 2010, that the claimant has a positive straight leg raise on the left side with pain running down the posterior aspect of the buttocks to the level of the mid-thigh. Dr. Rodriguez posited that these findings do not relate to the hip or hip surgery he performed, as they speak more to a lumbar etiology, that a prior MRI confirms an extrusion at L5-S1, and suggested that the claimant seek an evaluation with Dr. Matusz with respect to this condition.
In correspondence dated September 2, 2010, the claimant's attorney requested that the Board schedule a hearing to determine whether the claimant sustained a compensable back injury as a result of the September 21, 2009, incident. In support of the request, the attorney attached an August 21, 2010, narrative of Dr. Rodriguez and an August 30, 2010, medical narrative of Dr. Matusz, both of which indicate a lumbar spine injury.
In a C-4.2 for treatment on October 8, 2010, the claimant's treating medical provider, Dr. Matusz, opined that the claimant sustained an injury to his back that is causally related to the incident that occurred on September 21, 2009.
On December 6, 2010, the claimant's attorney filed an ERFA-1 (Claimant's Request for Further Action) with the Board requesting a hearing to amend the claim to include the claimant's back based upon the October 11, 2010, report of Dr. Matusz, which reports a lumbar spine condition causally related to the September 21, 2009, injury.
In a notice of hearing dated December 28, 2010, the Board scheduled a hearing for January 18, 2011, to address the following issues: C-8.1 Part B, question of lost time, wages paid/reimbursement to the employer and consequential back.
In a medical narrative dated January 11, 2011, Dr. Matusz opined that the claimant sustained an injury to his back that is causally related to the incident that occurred on September 21, 2009.
In a decision filed on January 21, 2011, for a January 18, 2011, hearing, the WCLJ directed further development of the record with the testimony of the claimant's Dr. Rodriguez and the SIE's consultant Dr. Bruckner, with the submission of memoranda of law on the issue of consequential back injury, and deposition transcripts by March 19, 2011, for further adjudication by a WCLJ.
At a deposition held on February 23, 2011, the SIE's consultant, Dr. Buckner, testified that he is coded by the Board and his specialty is orthopedic surgery, and his license is in good standing. He testified that he first examined the claimant on January 1, 2010, he prepared a report and later an addendum report following the examination, and that his testimony would accord with his two reports. He received a history with respect to a September 21, 2009, accident, reviewed medical reports in connection with the claimant's treatment, noted the claimant's complaints, and performed a physical examination of the claimant. Dr. Buckner concluded within a reasonable degree of medical certainty that the claimant sustained a strained left hip with a reported labral tear of undetermined age, with inconsistent findings on examination, and a heterogenic narcotism unverified. The claimant had a temporary mild partial disability based on the complaints of pain in the hip and the MRI that the disability could have been due to an aggravation of a prior condition. An addendum to his initial report was required to address the issue of a need for an MRI of the lumbar spine. He was of the opinion that such an MRI was not required based on his physical examination of the claimant and his review of the medical evidence of record. The claimant did not have a causally related back condition based on the medical evidence of record or the examination and the absence of back spasms. The echinosis finding could have been due to deep bending from the side due to his hip injury. Dr. Buckner also testified that he examined the claimant on July 15, 2010, prepared a report and an addendum with respect to that examination, and that his testimony would accord with his two reports. He was of the opinion that the claimant had a tear of the labrum of the hip on the left side with excellent progress. He prepared the addendum to assess whether the claimant could return to work in full duty capacity, after having returned to work in light duty.
On cross-examination, Dr. Buckner testified that the claimant reported a mechanism of injury that involved descending in a seat harness device from a second floor window while engaged in a training exercise. The claimant sustained a left hip strain and labral tear as a result of this injury. The report of claimant's Dr. Delamora indicates that the claimant sustained a hernia and echinosis (bruising) as a result of the September 21, 2009, accident. Dr. Delamora ordered an MRI of the lumbar spine based solely on the claimant's complaints of back pain; there were no objective findings on Dr. Delamora's examination of a lumbar spine issue. Dr. Buckner opined that a person with a lumbar spine injury can present with hip pain, rather than back pain, but that a certain mechanism of injury would have to occur and specific findings present for such a phenomenon to occur, none of which were present here. It was medically improbable that the claimant would have sustained a back injury from the impact of hitting the wall while descending it during the training exercise. The injury to the claimant's scrotal area following the injury could have caused back pain. The EMG studies performed by Dr. Anwar that revealed minimal findings were not enough to diagnose radiculopathy. The claimant's complaints of pain radiating down to his lower extremities is to be expected with a labral tear and echinosis.
At a deposition held on March 10, 2011, the claimant's treating physician, Dr. Matusz, testified that he is licensed to practice in New York State, his area of specialty is orthopedic spinal surgery, he is not Board certified in that specialty, he is coded by the Board, and his license is in good standing. While the claimant previously treated with Drs. Rodriguez and Delamora of his practice, he first saw the claimant on August 30, 2010, and has been actively treating him ever since. Dr. Matusz was provided with a history by the claimant, but could not recall what it was when questioned. His physical examination revealed well preserved standing balance, inability to flex forward, a strongly positive straight leg raise on the left, a decrease in range of motion of the hip, a slight limp or antalgic gait, and intact neurological strength. The claimant initially complained of back pain on December 10, 2009, to Dr. Delamora, and an MRI was ordered to rule out disc herniation. He treated the claimant for his back injury by ordering epidural steroid injections at L5-S1 that provided temporary relief of his condition. On January 11, 2011, he noted that the claimant's lumbar spine treatment was placed on the "back burner." The doctor felt that the claimant's buttocks, posterior thigh and low back complaints related to his lumbar spine condition, while his groin pain was due to his hip condition. The treatment for the left hip pain did not relieve the pain the claimant felt with respect to his back, buttocks or posterior thigh. Dr. Matusz opined that it is possible to differentiate pain between the hip and back based on physical examination, history and radiographs. The claimant had posterior thigh pain that is more consistent with radiculopathy or sciatica, then with a hip condition. The claimant had strongly positive straight leg raise on the left, which is consistent with neural tension. A hip condition is evidenced by pain with flexion and internal rotation of the hip, which the claimant demonstrated, but which diminished following surgery. He reviewed an MRI of the lumbar spine that showed a central disc herniation at L5-S1, as well as lateral recessed meniscus affecting the S1 nerve root, and his findings upon examination were consistent with the MRI results. An EMG that he reviewed showed a left S1 radiculopathy consistent with disc herniation at L5-S1 and positive straight leg raising and posterior buttock and thigh pain, and findings upon examination were consistent with the EMG results. Dr. Matusz opined that the claimant's back injury could be caused by the accident that occurred in August (sic September) of 2009. The claimant had no injuries or treatment involving the back prior to, or after, his 2009 date of accident. He did not note numbness, pins and needles, or spasm upon examination of the claimant, but that these conditions are not always present with a diagnosis of radiculopathy. Improvement following an epidural steroid injection is confirmation of the site of pathology, and after the claimant received his injection to the site of his herniation, his lumbar spine condition improved profoundly, but his symptoms eventually returned. Dr. Matusz speculated that it would not be uncommon for someone to continue to work following a back or hip injury as the claimant did following his accident.
On cross-examination, Dr. Matusz testified that the mechanism of injury is not in his initial August 30, 2010, report. The claimant worked following the accident, between September of 2009 and November of 2009. The claimant did not use an assistive device at the first examination. Dr. Matusz did not record in his initial report a loss of the normal lordotic curve or spasm upon palpitation. The claimant's range of motion of his left hip was limited as a result of surgery. The strongly positive straight leg raise was the result of the posterior thigh issues caused by the compression of his sciatic nerve caused by the lumbar disc herniation, and not his left hip surgery. He did not document wasting or atrophy of the left extremity, nor did he document examining the claimant great toe for signs of weakness in connection with his sciatica diagnosis. He documented that the claimant slowed his pace of walking following the accident due to his posterior thigh symptoms, not his groin and hip pain. Following his examination of the claimant on October 8, 2010, the claimant reported profound improvement in his lumbar spine condition, which Dr. Matusz attributed to the epidural steroid injections. He also documented at that examination the claimant's desire to return to work. Following an examination of the claimant on January 11, 2011, Dr. Matusz opined that the claimant's lumbar disc herniation is causally related to his original injury, in which he also injured his hip.
In a reserved decision filed on March 28, 2011, the WCLJ amended the claim to include the back.
Timeliness of Application for Mandatory Full Board Review
Workers' Compensation Law (WCL) § 23 provides, in relevant part,
that if the decision or determination was that of a panel of the board and there was a dissent from such decision or determination…, any party in interest may within thirty days after notice of the filing of the board panel's decision with the secretary of the board, make application in writing for review thereof by the full board, and the full board shall review and affirm, modify or rescind such decision or determination in the same manner as herein above provided for an award or decision of a referee.
However, pursuant to WCL § 123, the Board may exercise its discretion, in the interest of justice, to consider an untimely filed application for review.
The Full Board finds that the Board Panel Memorandum of Decision herein was filed on July 30, 2012. The claimant's application for Mandatory Full Board Review would have been considered to be timely filed if it was received by the Board on or before August 29, 2012. The claimant's application was not received by the Board until August 30, 2012. Therefore, the application for Mandatory Full Board Review submitted by the claimant's attorney is one day late. However, pursuant to WCL § 123, and in the interest of justice, the Full Board will excuse the late filing of the application.
Compensability of Claimant's Back Condition
"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 Full Board finds, upon review of the evidence of record, that the medical evidence supports a finding that the claimant sustained a causally related back injury on September 21, 2009. Dr. Matusz credibly opined that the claimant did not have a pre-existing back condition. Dr. Matusz confirmed that the claimant's back symptomology was not the result of his established hip injury, and diagnosed an independent injury to his back based on the profound improvement of his back symptoms following an epidural steroid injection in the claimant lumbar spine. Dr. Matusz credibly testified that the claimant's sciatic nerve was impinged causing symptoms that could have been mistaken for hip symptoms. He was of the opinion that it was only the groin pain that was related to the hip injury, and that the posterior thigh, buttocks and lower back pain was caused by the distinct back injury sustained on September 21, 2009. While Dr. Matusz conceded that he did not record the mechanism of injury, he confirmed that the training exercise the claimant was engaged in on September 21, 2009, could have caused an injury to his lumbar spine. Dr. Buckner conceded that the mechanism of injury reported by the claimant could have caused an injury to the claimant's back. While Dr. Buckner felt the EMG study was not enough to diagnose radiculopathy, Dr. Matusz credibly testified that the test showed a left S1 radiculopathy consistent with the MRI finding of disc herniation at L5-S1, positive straight leg raising, posterior buttock and thigh pain, and his findings upon examination. It is noted that Dr. Buckner did not review the MRI of the claimant's lumbar spine. The credible conclusion of Dr. Matusz, coupled with the medical reports of Drs. Anwar, Habif and Cean indicating causal relationship to the back, undermine Dr. Buckner's opinion that the claimant did not sustain a back injury on September 21, 2009, and that the claimant's complaints stemmed solely from his established hip injury.
Based upon the above, the Full Board finds that the claimant sustained a causally related back injury on September 21, 2009.
ACCORDINGLY, the WCLJ reserved decision filed on March 28, 2011, is AFFIRMED. No further action is contemplated by the Board at this time.