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 22, 2012.
The issue presented for Mandatory Full Board Review is this claim should be amended to include consequential hypogonadism.
The Workers' Compensation Law Judge (WCLJ) found that the carrier was liable for the cost of the prescription drug Androgel, which was required for the treatment of claimant's hypogonadism.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member found that there was insufficient medical evidence to find causal relationship.
In its application for Mandatory Full Board Review, the carrier argues that the medical evidence fails to support a finding of causal relationship for the claimant's hypogonadism.
The claimant has not filed a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a volunteer firefighter, sustained injuries to his left hip, left knee, left shoulder, left arm, and neck on January 21, 2002, when he was struck by a vehicle. The case was established for injuries to the claimant's left hip, left knee, left shoulder, left arm, and neck per Notice of Decision (NOD) filed February 10, 2003. The claimant was classified with a permanent partial disability (PPD) per NOD filed July 27, 2005.
The claimant filed an RFA-1 based upon the carrier's refusal to pay for the prescription medication Androgel on October 28, 2010. To his RFA-1 application, the claimant attached a December 1, 2009 letter from Dr. Wnek, his attending endocrinologist. Dr. Wnek stated that she had treated claimant since August of 2008 and had diagnosed him with hypogonadism in and prescribed Androgel therapy, which consists of applying the medication to the skin on the upper arms, chest, or shoulders. Dr. Wnek explained that chronic narcotic use can lead to secondary male hypogonadism and, as the claimant had been taking narcotic medication for his work related condition, she believes that such narcotic usage was a "likely etiology" for his hypogonadism, and that the need for Androgel therapy "appears to be related" to his work injury. Dr. Wnek noted that evaluation of claimant's pituitary gland "did not reveal and etiology" for his condition.
The carrier produced no contrary medical evidence, but refused to pay for Androgel.
At a hearing held December 9, 2010, the WCLJ found that the Androgel prescription was causally related to the injuries of this file. These findings were memorialized in a decision filed December 14, 2010.
When the "medical opinion of claimant's treating physician [is] neither speculative nor a general expression of possibility and it 'signif[ies] a probability as to the underlying cause of the claimant's injury which is supported by a rational basis' (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ," and when there is no conflicting medical evidence, the Board may not reject the treating physician's uncontroverted medical opinion on causation (Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177 , quoting (Mayette, 49 AD3d 920  [additional internal citations omitted]).
In this instance, the claimant has produced a medical report from Dr. Wnek which sets forth a rational basis as to why that doctor deems the need for Androgel therapy likely related to his compensable injury. While the dissenting Commissioner believes that Dr. Wnek's statement is not sufficiently strong to support the WCLJ and Board Panel majority's ruling, it is noted that the doctor's statement is more than mere surmise or a statement of possibility that the need for Androgel therapy may be causally related. Rather, Dr. Wnek uses terms such as "likely" and states "it appears to be related". Such wording constitutes more than mere surmise or speculation, and is sufficient to support the WCLJ and Board Panel majority's ruling. In addition, Dr. Wnek performed testing to rule out the possibility that claimant's pituitary gland was the cause of his hypogonadism.
While the carrier certainly had the option of questioning Dr. Wnek's assessment, it failed to produce any contrary medical evidence in a timely fashion. As such, Dr. Wnek's assessment is uncontested. Therefore, the Full Board finds that the preponderance of the evidence in the record supports the amendment of the claim to include consequential hypogonadism and the finding that the carrier is liable for the cost of Androgel therapy to treat that condition.
ACCORDINGLY, the WCLJ decision filed on December 14, 2010, is MODIFIED to establish this claim for consequential hypogonadism. In all other respects the WCLJ's decision is affirmed.