The Full Board, at its meeting on March 19, 2013, considered the above captioned case for mandatory Full Board Review of the Board Panel memorandum of decision (MOD) filed June 21, 2012.
The issue presented for Mandatory Full Board Review is whether the claim should be amended to include an injury to the claimant's teeth.
The Workers' Compensation Law Judge (WCLJ) determined that there was insufficient evidence to support a finding of a casually related dental injury.
The Board Panel majority reversed the WCLJ's decision, amending the claim to include dental injuries to teeth #5, 6, and 7, based upon the testimony of the claimant's treating dentist.
The dissenting Board Panel member determined that the testimony of the claimant's treating dentist lacked sufficient probability as to the cause of the claimant's dental injuries such that the claim should be disallowed.
In its application for Mandatory Full Board Review, the carrier asserts that the dental injury claim should be disallowed and the opinion of its consultant credited, as the claimant required dental treatment regardless of his work-related motor vehicle accident.
In rebuttal, the claimant contends that the credible medical evidence of record is sufficient to support the establishment of his dental injury claim.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In a C-3 (Employee's Claim for Compensation) filed on December 30, 2005, the claimant, a taxicab driver, indicated that an October 27, 2005, motor vehicle accident caused injuries to his head, neck, chest, back, mouth, and teeth.
In an October 27, 2005, C-4 (Attending Doctor's Report), Dr. Mitnick, a radiologist, reported the results of a CT scan of the claimant's maxillofacial area. Dr. Mitnick indicated that there was no evidence of a fracture or hemorrhage.
In a decision filed on October 16, 2006, this claim was established for injuries to the claimant's neck and back.
In a decision filed on February 26, 2010, the WCLJ found prima facie medical evidence of tooth loss of the claimant's upper and lower bridges, based upon medical records of the New York University (NYU) College of Dentistry.
In a March 9, 2010, IME-4 (Practitioner's Report of Independent Medical Examination), Dr. Temkin, the carrier's dental consultant, reported that the claimant had advised him that "as a result [of his work-related motor vehicle accident,] he sustained injuries to his upper and lower teeth and his back." Dr. Temkin noted: "The claimant states that tooth #5 hurts." Dr. Temkin stated that causality "has not been demonstrated. However, when post-accident/pre-treatment radiographs are made available, I will gladly re-review this file concerning causality."
Dr. Temkin testified at a deposition held on January 28, 2011, that his March 9, 2010, examination of the claimant revealed "fair to good" oral hygiene. Dr. Temkin explained that the claimant complained of pain in tooth #5 and that he had a fixed bridge placed from tooth #4 through tooth #16. The doctor could not recall if the claimant had advised him if he struck his mouth during the October 27, 2005, work-related motor vehicle accident. Dr. Temkin stated that at the time of his examination, he reviewed an x-ray report, but did not review the x-rays taken on November 14, 2005, upon which the report was based. When asked if the bridge was causally related to the work-related motor vehicle accident, Dr. Temkin responded: "Without the ability to view those x-rays, and see the supporting structures, and whether the teeth would be able to support the restorations that were there, I can't conclude that." Upon cross-examination, Dr. Temkin testified that the claimant was missing upper and lower teeth. The doctor explained that a bridge such as the claimant's would be reasonable treatment for someone whose teeth had been "knocked out."
Dr. Saccente, the claimant's treating dentist, testified on March 30, 2011, that he worked as a practicing dentist at NYU. Dr. Saccente explained that the claimant began treating at the NYU College of Dentistry on November 9, 2005, and that the doctor first treated the claimant on November 14, 2005. The doctor stated that the claimant initially sought treatment due to pain in upper anterior teeth #5, 6, and 7 "after a car accident." Dr. Saccente testified that the claimant had pre-existing periodontal disease, bone loss, periapical pathology, cavities, and teeth grinding and clenching. The doctor explained that x-rays taken on November 9, 2005, revealed "significant bone loss" around tooth #6, a large dark area at the apex of tooth #7, a dark area at the tip of tooth #7, and "very significant bone loss" around tooth #7. Dr. Saccente also explained that x-rays taken on November 14, 2005, revealed generalized periodontitis, a broken tooth at #12, periapical pathology on multiple teeth, occlusal wear, and missing teeth at #8, 9, 10, and 14. Dr. Saccente stated: "Trauma from an accident has to make [the claimant's dental conditions] worse, as well as it could trigger other things grinding and clenching, but what portion, I don't know." The doctor opined that "certainly having to replace the anterior bridge has to have something in part due to the motor vehicle accident." Dr. Saccente went on to state: "I believe certainly having to replace the bridge on the upper, may have been, not that it didn't need to be done, because certainly it did, but I believe the accident had to impact and possibly the root canal on number 5…So what part is solely the accident, I can't say, but I feel it had to contribute."
Upon cross-examination, Dr. Saccente testified that he was unsure whether the claimant had struck his teeth against anything in the October 27, 2005, motor vehicle accident. When asked if knowing this fact would affect his opinion as to causal relationship, the doctor replied: "To some extent, yes." Dr. Saccente conceded that he could not say within a reasonably degree of medical certainty whether the claimant's subsequent fillings were causally related to the motor vehicle accident, but that it was "possible." The doctor explained that periodontal disease can cause loosening, shifting, abscesses, and tooth loss.
At a hearing held on May 10, 2011, the claimant testified that his mouth and top teeth hit the steering wheel when he was involved in the motor vehicle accident on October 27, 2005. The claimant explained that he had an upper bridge prior to his work-related motor vehicle accident, but that the bridge needed to be replaced following the accident. At the conclusion of the hearing, the WCLJ determined that the causal relationship between the claimant's tooth loss and his motor vehicle accident was not established with sufficient specificity. The resulting decision was filed on May 13, 2011.
It is "axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). Such medical opinions need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ); a "medical opinion, with a supporting medical hypothesis, is sufficient to support the Board's finding of a causal relationship" (Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ).
Furthermore, "the resolution of conflicting medical opinions is within the province of the Board …" (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 ). It is well settled that in evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but has the discretion to choose those it credits and those it does not (see Matter of Nappi v Bell Atl. Corp./NYNEX, 284 AD2d 877 ; Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 ). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting medical opinions are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 ).
Finally, it is "well settled that where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a preexisting infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129  [citations omitted]). Therefore, "the fact that [an] injury relates to a preexisting condition will not preclude the claimant from obtaining relief where it is demonstrated that the claimant's employment exacerbated the condition in such a manner as to cause a disability which did not previously exist" (Matter of Ochsner v New Venture Gear, 273 AD2d 715 , lv dismissed 96 NY2d 731  [internal quotation marks and citations omitted]).
The Full Board finds, upon review of the evidence of record, that the claim should be amended to include a causally related injury to the claimant's teeth. The claimant initially reported injuries to his teeth in his November 22, 2005, C-3. A CT scan of the claimant's maxillofacial area was performed by Dr. Mitnick on October 27, 2005, the day of the motor vehicle accident. Although the scan of the claimant's upper jaw region revealed no fractures or hemorrhaging, the scan was presumably performed in response to the claimant's complaints of an injury to his face and/or teeth sustained during the accident. Additionally, the claimant testified at a hearing held on May 10, 2011, that the accident caused him to hit his mouth on the steering wheel of his vehicle, resulting in the loosening of prior bridgework. On November 9, 2005, fewer than two weeks after the claimant's October 27, 2005, work-related accident, the claimant sought dental treatment at NYU College of Dentistry, indicating on his in-take form that he was experiencing tooth pain following a car accident. Therefore, in light of the carrier's failure to produce evidence to the contrary, a review of the record reveals that the claimant promptly and consistently complained of injuries to his teeth as a result of his work-related motor vehicle accident.
Although Dr. Temkin testified that he could not provide an opinion as to causal relationship based upon the available medical evidence, the claimant's treating dentist, Dr. Saccente, credibly testified that facial trauma likely worsened the claimant's pre-existing dental conditions. Dr. Saccente opined that replacing the claimant's upper bridge was "certainly" due, at least in part, to the motor vehicle accident, and that trauma from such an accident could also have aggravated the claimant's dental condition and triggered "grinding and clenching" of his teeth.
Based upon the above, the Full Board finds that the claimant suffered a causally related injury to teeth #5, 6, and 7.
Accordingly, the WCLJ decision filed on May 13, 2011, is REVERSED. This claim is amended to include dental injuries to teeth #5, 6, and 7. No further action is planned by the Board at this time.