The Full Board, at its meeting held on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on October 15, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) amended the claim to include a causally related neck injury and made awards from October 12, 2010, forward at the marked partial disability rate.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member found that the WCLJ's decision should be modified to reverse the finding that the claimant had a causally related neck injury and to reduce awards to the moderate rate.
In the carrier's application for Mandatory Full Board Review, it argues the evidence in the record only supports a finding that the claimant has a moderate ongoing disability and no causally related neck injury.
In rebuttal, the claimant argues that there was sufficient evidence in the record to support a finding of causally related neck injury and a marked disability after October 12, 2010.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The case is established for a right shoulder injury stemming from a May 6, 2010, work accident. The claimant, a nursing aide, was turning a patient to wash her back when she felt a sharp pain from her shoulder to her right elbow. The claimant was out of work from May 8, 2010, until June 20, 2010.
A C-11(Employer's Report of Injured Employee's Change as Employment Status Resulting from Injury) dated October 18, 2010, indicates that the claimant returned to light duty work from June 21, 2010, to October 12, 2010, when she stopped working.
The claimant raised the neck as an additional site of injury.
In a report based on a May 10, 2010, examination, claimant's treating physician, Dr. Sapka, noted that claimant was experiencing pain in her right shoulder which radiated to her elbow.
In a report dated August 5, 2010, the carrier's consultant, Dr. Weiss-Citrome, opined that the claimant had a moderate partial disability due to the right shoulder injury. The doctor also determined that the claimant had a right shoulder infraspinetus full thickness tear and subscapularis tendon tear per the MRI report. The doctor opined that the claimant should remain on light duty, should not lift more than 20 pounds, and should not return to work full-time.
In his initial report, based on a September 9, 2010, examination, claimant's treating chiropractor, Dr. McGee, diagnosed claimant with cervical radiculopathy and cervical sprain/strain which was causally related to claimant's May 6, 2010, accident, and that claimant had a moderate (50%) partial disability. In his subsequent reports from November 1, 2010, forward, Dr. McGee found claimant to be temporarily totally disabled.
In a December 22, 2010, independent medical examination report, Dr. Wilson, the carrier's orthopedic consultant, opined that the claimant's cervical spine revealed tightness and tenderness, but that claimant's chronic cervical strain was unrelated to the work accident. The doctor opined that the claimant had a moderate temporary orthopedic disability due to her right shoulder. The doctor also determined that the following work restrictions applied to the claimant: the claimant should not lift over 10 pounds; should not push or pull over 20 pounds; should not climb; and should not utilize her right upper extremity for overhead work. The doctor's report also indicates that the claimant informed the doctor that she needs help with cooking, bathing and carrying.
The parties were directed to depose Drs. Wilson, McGee and Weiss-Citrome regarding the claimant's neck and the degree of disability.
Dr. McGee, the claimant's chiropractor, was deposed on January 26, 2011, and testified that he began treating the claimant on September 9, 2010. The claimant reported feeling a sharp pain from her shoulder to her right elbow while turning a patient. She reported neck pain radiating into the right shoulder and elbow, as well as paresthesia into the right upper extremity and the right hand. Dr. McGee diagnosed the claimant with causally related cervical sprain/strain, cervical radiculopathy, and disc derangement, which he believed were causally related. Upon his initial examination, he found that claimant was 50% disabled and could work with restricted duties. Dr. McGee testified that claimant has totally disabled since October 12, 2010. Claimant began treating with Dr. McGee because of her neck symptoms. Dr. McGee believed the claimant's cervical radiculopathy was initially misdiagnosed as being related to her shoulder injury. According to Dr. McGee, that claimant was complaining of pain radiating to her elbow "from the beginning" suggested to him that her radiculopathy was related to a neck, rather than a shoulder injury.
Dr. Wilson, the carrier's consulting orthopedist, testified that he examined the claimant on December 22, 2010, and found tightness of the cervical spine musculature, reasonable motion, mildly positive Sperling's test in both directions, and restricted right shoulder abduction. He stated "turning a patient should not injure the neck." He opined that the claimant's neck complaints and findings were related to chronic cervical degenerative disc disease. On cross-examination, Dr. Wilson testified that he did not note the actual mechanics of the claimant's injury. He did not know what position the patient was in, whether the patient was in a chair or a bed, or whether the claimant had assistance or a lifting mechanism. Dr. Wilson also testified that the claimant was moderately disabled due to the right shoulder condition.
Dr. Weiss-Citrome, the carrier's consulting physical medical and rehabilitation specialist, testified that she examined the claimant on August 15, 2010. The claimant had full range of neck motion and no tenderness or spasm and normal motor strength in her arms. She believed that the claimant's neck complaints were related to her shoulder injury. She also had restricted range of right shoulder motion, bicipital tenderness, and a positive impingement sign. Dr. Weiss-Citrome diagnosed a right shoulder infraspinatus full thickness tear and subscapulatis tendon tear which was noted in a MRI report. She opined that these required surgery. She found the claimant moderately partially disabled.
In a reserved decision filed on July 19, 2011, the WCLJ amended the claim to include the neck as a site of injury and found the claimant to be partially disabled at a marked degree subsequent to October 12, 2010.
"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 ).
"[T]he resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation" (Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135 ; see Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d 1114 ). However, the Board "may not rely upon a medical opinion that is purely speculative rather than demonstrating a reasonable probability as to the cause of an injury. For a medical opinion regarding causation to qualify as competent evidence, it must signify a probability as to the cause of the injuries for which compensation is sought and be supported by a rational basis" (Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067  [quotation marks and citations omitted]).
Here, Dr. Weiss-Citrome, the carrier's consultant, testified that based upon her examination of the claimant, the claimant had full range of neck motion with no tenderness or spasm and believed that the claimant's neck complaints were related to her shoulder. Dr. Wilson, the carrier's orthopedic consultant, found pathology supporting a neck injury, but he did not believe that the claimant's neck injury was related to her work accident. Dr. Wilson testified that he based his opinion on causal relationship on his belief that "turning a patient should not injure the neck." However, Dr. Wilson conceded that he was not aware of the specifics of claimant's accident.
Dr. McGee, the claimant's chiropractor, opined that the claimant injured her neck, in addition to her right shoulder, during her work accident. Dr. McGee testified that a significant portion of the claimant's early elbow complaints were misattributed to her shoulder injury. In Dr. McGee's opinion, the elbow pain was actually related to the neck injury, however, her complaints were initially attributed to her shoulder injury, instead of her neck.
While conflicting evidence on the issue of causal relationship has been submitted, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant sustained a causally related neck injury.
Degree of Disability
Drs. Wilson and Weiss-Citrome opined that the claimant had a moderate degree of disability considering only claimant's shoulder, but did not consider claimant's neck injury, while Dr. McGee opined that the claimant was totally disabled as a result of her shoulder and neck injuries combined.
Dr. Wilson, in his December 22, 2010 report, indicated that claimant should not lift over 10 pounds; should not push or pull over 20 pounds; should not climb; and should not utilize her right upper extremity for overhead work. These significant restrictions, which prevent claimant from performing her regular employment as a nurse aide, support a finding that claimant had a marked partial disability as of October 12, 2010.
ACCORDINGLY, the WCLJ decision filed on June 4, 2009, is AFFIRMED. This case is continued.