The Full Board at its meeting on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed May 10, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant sustained a compensable left knee injury.
In a reserved decision filed on March 29, 2010, the Workers' Compensation Law Judge (WCLJ) concluded that the claimant sustained a consequential left knee injury based on the persuasive medical opinion of Dr. Chao.
The Board Panel majority reversed the WCLJ's decision, finding that no support exists in the record to amend the instant claim to include a consequential left knee injury, as the Board's impartial specialist clearly determined that the claimant's left knee injury was not causally related,
The dissenting Board Panel member would amend the claim to include the claimant's left knee as a direct, rather than a consequential injury, and authorize arthroscopic surgery to the claimant's left knee.
In her application for Mandatory Full Board Review, the claimant argues that the decision of the WCLJ should be affirmed.
In its rebuttal, the carrier argues that the opinion of the Board Panel majority should be affirmed, as there is no evidence that the claimant sustained a consequential left knee injury.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The employer filed a C-2 (Employer's Report of Work-Related Accident/Occupational Disease) with the Board on June 11, 2008, indicating that the claimant sustained a right knee injury while lifting a case of merchandise on May 31, 2008, and missed approximately one week of work.
The carrier filed a C-669 (Notice to Chair of Carrier's Action on Claim for Benefits) form with the Board on September 5, 2008, indicating that the claim for a right knee injury is not disputed, but that payment has not commenced to the claimant as her lost time as a result of her right knee injury did not exceed seven days.
The earliest medical evidence in the record is a C- 4 (Attending Doctor's Report) dated June 17, 2008, by claimant's treating physician, Dr. Musso, based on a June 5, 2008, examination. In that report, Dr. Musso wrote that "[p]atient states while lifting a box at work she hurt her left leg" [emphasis added].
In a report dated September 4, 2008, claimant's physical therapist noted that claimant experienced pain in both knees as a result of her May 31, 2008, accident and had been diagnosed with strain and PFPS (patellofemoral pain syndrome) in both knees. In a C-3 (Employee Claim) form dated April 6, 2009, and filed with the Board on April 14, 2009, the claimant indicated that she sustained injuries to both knees on May 31, 2008, in the course of her employment. In response to Section D (Your Injury or Illness), Question Number Five (What were you doing when you were injured or became ill?), the claimant responded "lifting boxes 1st one knee hurt (left) then second one (right) hurt." In response to Question Number Six (How did the injury/illness happen?), the claimant responded "lifting over 14 years."
In an Administrative Decision filed on June 22, 2009, the WCLJ found that the claimant sustained a work-related injury to the right leg, that she was not entitled to lost wages benefits as the medical reports do not show more than seven days of disability, authorized necessary related medical care and directed no further action. The decision became effective on July 22, 2009, when no timely filed objection to the decision was received by the Board.
In a decision filed on October 1, 2009, the WCLJ, among other findings, authorized causally related medical treatment, including surgery to the right knee and physical therapy, found prima facie medical evidence for a consequential left knee injury based on multiple medical narratives of claimant's treating physician, Dr. Chao, noted that Dr. Chao sought authorization for left knee surgery, and directed the parties to depose the claimant's treating physicians, Drs. Chao and Sclafani, and the carrier's consultant, Dr. Cohen, on the issue of causally related left knee.
In a medical report filed with the Board on November 18, 2009, Dr. Sclafani indicated that the claimant underwent arthroscopic surgery on her right knee on October 15, 2009. The report indicates that Dr. Sclafani performed a partial synovectomy and partial meniscectomy.
The carrier consultant, Dr. Cohen, testified at a deposition held on December 4, 2009, that he is an orthopedic surgeon and that he performed an independent medical examination of the claimant on June 30, 2009. Prior to evaluating the claimant, he reviewed numerous medical records. Dr. Cohen found the claimant's left knee to be totally normal, and testified that there is no causal relationship (consequential or otherwise) between the claimant's work-related accident and her left knee complaints. It is noted that in his June 30, 2009, IME-4 (Practitioner's Report of Independent Medical Examination) report, Dr. Cohen reports that the claimant provided a history of injuring both knees while lifting boxes in the employer's produce department.
The claimant's treating physician, Dr. Chao, testified at a deposition held on December 7, 2009, that he first examined the claimant on April 28, 2009. According to Dr. Chao, due to her right knee pain the claimant was overusing her left leg and that this overuse of her left leg caused a consequential derangement of the left knee. Dr. Chao noted that the claimant suffers from consequential left knee pain with meniscal tear. Dr. Chao testified that he would defer to claimant's surgeon, Dr. Sclafani, as to whether the claimant requires left knee surgery.
In the March 29, 2010, reserved decision, the WCLJ precluded the testimony and medical reports of Dr. Sclafani based on his failure to testify at two scheduled depositions, and concluded that the claimant sustained a consequential left knee injury based on the persuasive medical opinion of Dr. Chao. The WCLJ was of the opinion that Dr. Chao credibly testified that compensation for, and weight-shifting off, the damaged right knee produced the claimant's consequential left knee injury. The carrier sought administrative review of that decision.
The Board Panel, in a decision filed on March 2, 2011, held in abeyance the amendment of the established claim to include a consequential left knee injury, and directed that a Board designated impartial specialist in orthopedics examine the claimant and the evidence of record, and issue a report indicating whether the claimant's consequential left knee injury is causally related to the established claim.
In a decision filed on April 8, 2011, the WCLJ referred this case to the Board's Impartial Specialist Unit on the issue of consequential left knee injury per the March 2, 2011, Board Panel decision.
In a medical narrative dated August 10, 2011, filed with the Board on August 17, 2011, Dr. Yang, the impartial specialist appointed by the Board, opined that the claimant sustained a work-related left knee injury based on a review of the medical evidence of record, the history provided to him by the claimant that she injured both of her knees lifting boxes at work, and an MRI of the left knee indicating a medial meniscal tear. The report indicates that Dr. Yang relied on the IME report of Dr. Cohen, the medical records of Dr. Sclafani, and the physical therapy and the medical records of Dr. Chao.
At a hearing held November 23, 2011, Dr. Yang testified that he is Board certified and his area of specialty is orthopedic surgery. He received a history from the claimant of falling and injuring both knees while lifting boxes at work. He diagnosed the claimant with a meniscus tear in her left knee as a result of the May 31, 2008, accident. Dr. Yang could not explain how she suffered a torn meniscus in her left knee, and that a meniscal tear can be present, but a patient will not experience symptoms until an injury occurs. An antalgic gait usually occurs after a meniscal tear and not the other way around. If a person injures one knee, the resulting overuse of the other knee can cause a meniscal tear. The claimant did not provide a history of overuse of the left knee, but a history of injuring both knees on May 31, 2008. In reaching his conclusion, he independently reviewed MRI findings that were reported to him by the claimant and the medical reports of the claimant's treating medical providers, Drs. Chao, Sclafani, and the carrier's consultant, Dr. Cohen.
At the conclusion of the hearing, the parties offered summations. The carrier raised the issue of Workers' Compensation Law (WCL) § 28 with respect to the claimant' left knee injury and argued that the claimant's testimony indicates that she was not pursuing the left knee as a consequential injury, and that Dr. Cohen's opinion of no consequential injury and Dr. Yang's opinion that the claimant injured both of his knees on the date of accident, should be adopted by the Board. The claimant's attorney rested on the record.
In a decision filed on November 30, 2011, the WCLJ noted the case was being sent to the Board Panel for a decision.
"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 claimant sustained a left knee injury as a direct result of a fall at work on May 31, 2008, that this left knee claim was timely filed with the Board on April 14, 2009, and that left knee surgery should be authorized. Dr. Yang, the impartial specialist appointed by the Board, was of the opinion that the claimant's left knee injury was not a consequence of her established right knee injury. However, Dr. Yang opined that the claimant's left knee injury resulted directly from a fall at work on May 31, 2008. The history provided by the claimant to Dr. Cohen and to Dr. Yang, and the C-3 filed with the Board, indicate that the claimant sustained direct injuries to both of her knees on the date of accident. While the majority stated that no medical evidence indicating a left knee injury was filed until nearly a year after the May 31, 2008, date of accident, there is C-4 in the record from the claimant's treating physician, Dr. Musso, for treatment on June 5, 2008, specifically indicating an injury to the claimant's left leg while lifting a box at work. The medical reports filed by the claimant's physical therapy provider additionally indicate causally related treatment for both knees starting in September of 2008.
Accordingly, the WCLJ reserved decision filed on March 29, 2010, is AFFIRMED in as much as that decision established the instant claim for a left knee injury, albeit consequential. No further action is contemplated by the Board at this time.