The Full Board, at its meeting held on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 26, 2012.
The issue presented for Mandatory Full Board Review is whether the record supports the amendment of the claim to include consequential bursitis and avascular necrosis (AVN) of the right hip.
The Workers' Compensation Law Judge (WCLJ) found the claimant sustained consequential right hip bursitis and AVN, amended the case to include these conditions, and found the outstanding C-8.1 objections in favor of the health care provider.
The Board Panel majority reversed the WCLJ's decision and disallowed the claim for consequential right hip bursitis and AVN.
The dissenting Board Panel member found that the claimant's right hip bursitis and AVN were a consequence of the altered gait which resulted from his compensable right ankle injury and that the WCLJ rendered a credibility determination which should be upheld.
In his application for Mandatory Full Board Review, the claimant contends that the Board Panel memorandum of decision is arbitrary and capricious, and that the WCLJ decision was rendered within the applicable discretion afforded the WCLJ and should have been affirmed.
In rebuttal, the carrier argues that the majority decision is supported by credible evidence and should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a mason, sustained an injury to his right ankle on November 10, 2005, when he stepped on a sump pump and twisted his ankle. The case was established for an injury to the claimant's right ankle per notice of decision filed May 1, 2006.
Claimant underwent surgical repair of his right ankle on October 30, 2006, performed by his treating orthopedist, Dr. Dixon. In a February 27, 2008, report, Dr. Dixon noted that claimant was experiencing "pain in his right greater trochanteric hip region subsequent to surgery on his ankle…" Dr. Dixon diagnosed claimant with bursitis in his right hip and it was Dr. Dixon's opinion that claimant's hip injury was "related to his gait abnormality from his ankle injury."
Claimant was incarcerated from February 2008 until August 2010, and the record contains no evidence of treatment between February 2008 and October 2010.
In an October 25, 2010, report, Dr. Dixon diagnosed claimant with right AVN of the femoral head with degenerative changes of the hip. Dr. Dixon stated that claimant "comes in today subsequent to an injury in 2005 when he fell off an 8-feet high wall breaking his ankle and potentially injuring his hip at that time as well as his ankle, which is more severe. […] He has had increasing pain in his right hip subsequent to that injury. He has not had a new injury." Dr. Dixon went on to state that claimant "did not have any previous problems potentially from the way he walks but just an injury at the same time that he fell that went unnoticed until more recently as this developed."
In a November 1, 2010, report, Dr. Dixon's colleague, Dr. Congiusta, diagnosed claimant with mild degeneration of the right hip with a possible labral tear and possible AVN. Dr. Conguista stated that claimant "had a fall in 2005 and had an ankle injury and eventually had an ankle surgery. He thinks somewhere during this time is when his hips start hurting him. He does not believe he ever had pain before the fall. Since then he has had hip pain which is slowly getting worse."
The carrier filed C-8.1s objecting to treatment for the hip, as this claim has only been established for the ankle.
Claimant was examined by the carrier's consultant, Dr. Buckner on February 16, 2011. In his report, Dr. Buckner diagnosed claimant with AVN in his right hip that was not causally related, stating that "[n]othing in the medical records indicate any hip symptoms at the time of or resulting from the injury of this file."
In a letter to claimant's attorney dated March 15, 2011, Dr. Congiusta wrote:
I received your communication concerning [the claimant], who […] I have been following for avascular necrosis of the right hip which became symptomatic after an ankle problem […]. It is more probable that the patient's avascular necrosis became symptomatic as a consequence of his altered gait especially with the right ankle. However, it is likely it would become symptomatic at some point in the future as avascular necrosis is a condition which generally gets worse and avascular necrosis was not caused in all likelihood by the patient's ankle problem.
By a decision filed May 24, 2011, the WCLJ found prima facie evidence for a consequential right hip condition based on Dr. Congiusta's May 15, 2011, letter.
The claimant testified at a hearing held July 12, 2011, that after the injury of November 10, 2005, he limped severely, and utilized crutches and then a cane. He had surgery performed on his right ankle in October 2006, and used crutches, and then a walking cast, after this surgery. He believed he used the walking cast for three to four months. Thereafter, he still limped, but his limp was better than before surgery. The claimant first began noticing right hip pain eight to nine months post-surgery. The symptoms commenced sometime in the early summer of 2007. He first saw Dr. Dixon for his hip in October or November of 2007, and the doctor gave him an injection into his hip in February 2008. Dr. Dixon advised the claimant that his hip problem may be due to his altered gait from his ankle injury. The claimant denied any preexisting right hip injury or problem. He was incarcerated from February 2008 through August 2010. There was an episode in November or December 2009 where his hip condition flared up after he was shoveling snow on a work crew. He was given a cortisone shot at the prison. While the claimant agreed the shoveling activity aggravated his hip condition, he denied any specific injury to his hip while incarcerated. The claimant was working at the time of testimony driving tractor trailers. He was able to do his current job. The claimant had been diagnosed with AVN and was currently treating with Dr. Congiusta. Dr. Congiusta had advised that his altered gait was more than likely the cause of his hip condition.
Dr. Dixon testified via deposition on August 16, 2011, that in October 2006, he performed surgery on the claimant's right ankle and removed a bony fragment. The first complaint of a hip problem was on February 27, 2008, when claimant complained of pain in the right greater trochanteric region in his hip. The claimant presented with a mild antalgic gait at that time. The last time he saw the claimant before February 27, 2008, was on September 5, 2007. There was no mention of any hip problem at the September 2007 office visit. Dr. Dixon testified that claimant's "greater trochanteric bursitis is most likely from an altered gait" (Deposition, Dr. Dixon, p. 15) Although claimant's AVN was not caused by his altered gait, it "was exacerbated over time with his altered gait" (id.).
Attending physician Dr. Congiusta testified via deposition on August 22, 2011. He had first treated the claimant for a right hip condition on November 1, 2010. The claimant complained of having hip pain since his October 2006 ankle surgery and informed the doctor that his hip pain had progressed. Specifically, the claimant stated he had pain in his groin and outside his hip, difficulty with stairs, a clicking in his hip, and occasional limping. The claimant exhibited good range of motion, albeit with some pain. X-rays demonstrated mild degeneration of the hip and early arthritis. A MR arthrogram was done and demonstrated AVN, which Dr. Congiusta diagnosed on November 29, 2010. The doctor did not believe the ankle injury was the cause of the AVN, but believed it likely that limping as the result of his ankle injury exacerbated his hip condition. The doctor did not receive any history of pre-existing hip problems. The doctor conceded that he would alter his opinion if the onset of hip symptoms was 2.5 years post-surgery and the claimant did not walk with a limp during this period. The doctor also agreed that most people with AVN have that condition worsen over time.
Dr. Buckner, carrier's consultant, testified via deposition on August 4, 2011. He had seen the claimant on four occasions, March 7, 2006, September 13, 2007, December 12, 2007, and February 16, 2011. The only time the claimant made complaints regarding his hip, and the only time the doctor examined the hip, was on February 16, 2011. The interim history the doctor received on February 16, 2011, was that the claimant went to jail for using drugs, but right before becoming incarcerated had received a hip injection from Dr. Dixon. The claimant had symmetric range of motion of both hips and a slight difference in external rotation on the left. He demonstrated no muscle atrophy in his legs and no abnormal gait consistent with a hip injury. Dr. Buckner diagnosed AVN of the right hip, unrelated to the accident of record. The doctor explained that AVN was a condition where a portion of bone in the hip dies. The onset is often idiopathic, but can also be related to drug use, specifically steroid and narcotic use, as well as cigarette smoking. The doctor believed the claimant was a smoker, but did not have specifics as to how much the claimant smoked per day. Likewise, while the doctor was aware the claimant had a history of using drugs, and was incarcerated for drug use, he conceded that he was unaware of what type of drug the claimant was jailed for using, and had no documentation which would confirm the claimant used steroids or narcotics. The doctor did not believe the AVN was related to the claimant's altered gait, and had never seen AVN develop as a result of an altered gait. The doctor explained that AVN is related to loss of blood supply, and not altered walking mechanics. He also noted that the claimant had never advised of any hip complaints during his first three examinations, and noted the lack of any documented hip complaints in the medical reports covering several years he reviewed.
Following development of the record, the WCLJ ruled that the claimant sustained consequential right hip bursitis and AVN, amended the case to include these conditions, and found the outstanding C-8.1 objections in favor of the health care providers. These findings were memorialized in a decision filed September 28, 2011.
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 ; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215 AD2d 943 , lv den 87 NY2d 806 , Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 ).
Dr. Dixon, Dr. Congiusta and Dr. Buckner agree that claimant has AVN in his right hip. Dr. Buckner, the carrier's IME, is of the opinion that claimant's AVN was not related to walking with an altered gait. In contrast, both of claimant's treating physicians, Dr. Dixon and Dr. Congiusta, are of the opinion that although walking with an altered gait did not cause claimant's AVN, it did exacerbate it and make it symptomatic. Dr. Dixon has also diagnosed claimant with bursitis in his right hip, which he believes was likely caused by walking with an altered gait; however, Dr. Congiusta and Dr. Buckner have only diagnosed claimant with AVN.
WCL § 13(e) provides, in relevant part, that:
The board, on its own motion,…may require examination of any claimant, or of the testimony, reports and exhibits, or both, by a physician especially qualified with respect to the diagnosis or treatment of the disability for which compensation is claimed; and may require a report from such physician on the diagnosis, the causal relationship between the alleged injury and subsequent disability or death, proper treatment, and the extent of the disability of such claimant.
Given the disparity in the opinions of the medical experts in the present matter and the uncommon injury in question, the Board Panel directs that claimant be referred to an impartial specialist in the field of orthopedic medicine who will be asked to render an opinion on whether claimant has both AVN and bursitis, or just AVN, and whether walking with an altered gait made claimant's AVN symptomatic (see Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d 1114 ; Matter of Banner v Anheuser-Busch Cos., Inc., 59 AD3d 759 ).
Accordingly, the Full Board directs the claimant be referred to in impartial specialist in the field of orthopedics who shall render an opinion on whether claimant has both AVN and bursitis, or just AVN, and whether walking with an altered gait made claimant's AVN symptomatic.
ACCORDINGLY, the WCLJ decision filed on September 28, 2011, is MODIFIED to hold the issues in abeyance pending referral to the Impartial Specialist Unit for the designation of an impartial orthopedist to examine the claimant, review the medical records, and issue a report on the issue of consequential bursitis and AVN of the right hip. After the submission of the report, both sides shall be granted an opportunity to request cross-examination of the impartial specialist. The case shall then be referred back to the appropriate Board Panel for decision. The case is continued.