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 filed May 29, 2012.
The issue presented for Mandatory Full Board Review is whether this claim should be amended to include the left shoulder.
The Workers' Compensation Law Judge (WCLJ) disallowed the claim for left shoulder and consequential right shoulder injuries.
The Board Panel majority modified the WCLJ's decision, finding that the case should be amended to include causally related injuries to both shoulders. The Board Panel majority, on its own motion, also directed further development of the record on the issue of whether claimant sustained a causally related neck injury.
The dissenting Board Panel member would have affirmed the WCLJ's decision.
The carrier filed an application for Mandatory Full Board Review on June 28, 2012.
The claimant did not file a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
WCB #79809256 is established for a left hand injury that occurred on June 10, 1998, while the claimant was employed by Schlegel Systems. The injury occurred when a skid the claimant was gripping in his left hand slipped. The claimant was awarded a 5% schedule loss of use of the left hand in a WCLJ decision filed on May 12, 2000, and the case was marked no further action.
The instant case (WCB #70003909) is established for an occupational disease involving bilateral wrists and elbows that occurred while the claimant was working for the same employer. A February 8, 2000, date of disablement was established by the Board (see Notice of Decision filed May 12, 2000, amended August 24, 2000).
In a report dated May 12, 2000, claimant's treating physician, Dr. Fink, stated that claimant continued to have upper extremity pain, and that he had pain beginning at each shoulder and radiating downwards.
The claimant was referred to Dr. Thanik of the Pain Management Center by his treating medical provider, Dr. Kirdani-Ryan. In a report dated September 12, 2000, Dr. Thanik states that there is no history of any particular injury, but that the claimant's work does involve a "fair amount of repetitive duties." Dr. Thanik diagnosed the claimant with "[b]ilateral arm shoulder pain secondary to overuse syndrome."
In a decision filed on January 15, 2001, the WCLJ noted that the claimant had raised the issue of additional injuries to the neck and shoulders, but found no prima facie medical evidence to support a claim for the bilateral shoulder injuries.
In an amended decision filed on May 10, 2004, the claimant was awarded a 15% schedule loss of use of the right hand and a 30% schedule loss of use of the left arm, as well as an additional 43.2 weeks of benefits for a protracted healing period, and the case was marked no further action.
The claimant testified at a hearing on January 12, 2007, concerning his alleged work-related neck injury. Claimant testified that on February 8, 2000, he had been moving skids around, when he felt a sensation go up and down his left arm, like a charge. He informed Dr. Kirdani-Ryan that the sensation went "up and down [his] arm to [his] neck area," but he did not know where it was coming from. His doctor did not treat him specifically for his neck. Prior to February 8, 2000, the claimant had not had any injuries to or treatment for his neck.
In a reserved decision filed on May 29, 2007, the WCLJ disallowed the claim for a causally related neck injury. The WCLJ noted that the claimant did not describe a direct injury to the neck in his testimony of January 12, 2007, and he admitted that he had not advised his employer of any neck injury and that he had not described any such injury to his treating physicians. Finally, the WCLJ affirmed the prior schedule awards and payments were suspended as of May 24, 2007. This decision was affirmed by a Board Panel decision filed on November 2, 2007. The compensability of claimant's neck injury therefore, is not an issue before the Full Board.
In his initial report, dated June 10, 2008, the claimant's treating physician, Dr. Ameduri, diagnosed claimant with impingement of both shoulders. In a report dated November 19, 2008, Dr. Ameduri indicated that the claimant suffered a traumatic injury to his left shoulder on February 8, 2000, when he jerked his left shoulder while trying to catch "a 96-inch cage." He further opined that the claimant developed an overuse syndrome in the right shoulder as a result of favoring the left shoulder.
The claimant filed an RFA-1 (Claimant's Request for Further Action) on June 18, 2010, requesting further action on the issue of "a consequential left shoulder."
In a decision filed on August 25, 2010, the WCLJ found prima facie medical evidence for the claimant's left shoulder and a consequential right shoulder based on the November 19, 2008, report of Dr. Ameduri, and continued the case for the claimant's testimony on these additional injury sites.
In an IME-4 (Practitioner's Report of Independent Medical Examination) report dated September 8, 2010, filed with the Board on September 10, 2010, the carrier's consultant, Dr. Miller, determined that the medical evidence of record was insufficient to causally relate the claimant's left shoulder problem to his employment. The claimant subsequently waived cross-examination of Dr. Miller.
The claimant testified at a hearing held on October 1, 2010, that on February 8, 2000, while working for the employer, he injured his left shoulder when he went to catch a heavy, waterlogged "cage" or "skid" that was about to fall. He immediately felt pain in the back of his shoulder and pain radiating up and down his arm. He initially treated with his primary care physician Dr. Kirdani-Ryan. He provided Dr. Kirdani-Ryan with the same history of injuring his left shoulder while attempting to catch a falling skid. He was referred to a number of other physicians by Dr. Kirdani-Ryan, including a neurologist, Dr. Alaimo, and a pain management specialist Dr. Thanik. He did not immediately file an accident report as he thought it was just a muscle pull that would go away. He specifically informed the nurse at work that he injured his left shoulder attempting to catch a falling skid and that he could not explain why the nurse did not record this history on the C-2 form filed by the employer with the Board. He stopped working for the employer in 2008. He has not sustained any shoulder injuries in his subsequent employment. He does not have private health insurance, but goes through the Veteran's Administration.
The employer's Health and Safety Human Resources Supervisor testified at a hearing on December 6, 2010, that he has no recollection of the claimant reporting a traumatic event involving his shoulders in 2000. He has no reason to doubt any of the facts contained in a 2000 supervisor's accident and investigation report, which was produced by the carrier at the hearing, and ultimately entered into evidence as carrier's Exhibit Number One.
The supervisor's accident and investigation report introduced into evidence at the December 6, 2010, hearing indicates that on February 10, 2000, claimant reported pain in both wrists "from making boxes," but that claimant thought "the pain comes from all the time spent…on the computer and banding boxes…" The report indicated that claimant "feels some sort of shocks of pain from his wrist to his elbow." No mention is made of a shoulder injury.
Dr. Ameduri testified at a deposition held on December 8, 2010, that he first saw the claimant on June 10, 2008, at which time he presented with left shoulder pain as his chief complaint. The claimant provided a history of injuring his left shoulder at work on February 8, 2000, while attempting to catch a falling 96-inch cage.
Dr. Ameduri testified that the claimant's left shoulder injury is causally related to the February 8, 2000, incident at work based on the history provided to him by the claimant. Dr. Ameduri noted a consequential right shoulder injury that occurred as a result of not using or favoring his left shoulder. The claimant's right shoulder probably is not causally related to the claimant's hand and elbow injuries. He has no reason to doubt the veracity of the history provided to him by the claimant. On cross-examination, Dr. Ameduri testified that he would have to review the medical report of the providers who observed the claimant in 2000 in order to provide an answer as to whether the history provided to them by the claimant was more accurate than the claimant's testimony. He feels he can provide a credible opinion with respect to causal relationship in this case based on the history provided to him by the claimant, and does not need to review the 2000 medical reports in order to provide an opinion.
In a reserved decision filed on March 14, 2011, the WCLJ disallowed the amendment of the instant claim to include the left shoulder and a consequential right shoulder based on the lack of credible lay and medical evidence. The WCLJ concluded that the claimant's testimony indicating that his shoulder problems arose out of a discrete incident at work involving lifting or moving a skid was not credible based on the clear history provided in the C-2, and the initial medical records that indicate that this claim was the result of repetitive actions at work. The WCLJ also noted that the history of a sudden onset accident in 2000 did not appear in the record until the filing of Dr. Ameduri's 2008 medical report, which was based solely on the history provided by the claimant, a history the doctor conceded was inconsistent with the contemporaneous medical evidence of record.
Claimant sought administrative review of the March 14, 2011, reserved decision insofar as it disallowed the claim for a left shoulder injury, arguing that the claimant's and the opinion of Dr. Ameduri support a finding that claimant sustained a discrete, traumatic accidental injury to his left shoulder on February 8, 2008. The claimant did not seek review of the decision insofar as it disallowed the claim for a right shoulder injury. The compensability of claimant's right shoulder injury therefore, is not an issue before the Full Board.
"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]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920  [citations and internal quotation marks omitted]).
The claimant unequivocally testified that he injured his left shoulder as a result of a sudden onset accident on February 8, 2000, while attempting to catch a large falling skid in the course of his employment. The medical reports in 2000 indicate, based on the history provided by the claimant at that time, that his bilateral hand and elbow injuries, as well as his left shoulder injury, were incurred as a result of his repetitive duties at work. As such, the claimant's testimony is clearly at odds with the credible contemporaneous medical evidence of record. Also, the supervisor's accident and investigation report introduced into evidence at the December 6, 2010, hearing indicates that on February 10, 2000, claimant reported pain from his wrist to his elbow, but did not mention any report of shoulder symptoms. While Dr. Ameduri provided an opinion that the claimant's left and consequential right shoulder injuries were brought about by his attempt to catch a skid at work on February 8, 2000, he based his opinion solely on the history provided to him by the claimant in 2008, eight years after the alleged accident occurred, which is clearly at odds with the contemporaneous evidence in the record. The Board Panel majority found "that the claimant has testified credibly, and that any apparent contradiction or error is due to the claimant's having confused his two claims and the length of time since the two claims commenced…The claimant's description of the accident that occurred on February 8, 2000, is actually the description included in his medical records from 1998." However, claimant never testified that he had mistaken his two claims, and did not so argue in his application for review. Insofar as claimant has taken the unequivocal position that he was injured in a discrete accident on February 8, 2000, the finding of the majority that claimant mistook his two claims is pure surmise.
Finally, even if claimant had confused his two claims, he clearly indicated that he injured his left shoulder in a discrete accidental injury. Whether that injury occurred on February 8, 2000, as he testified, or on June 10, 1998, the date of his established left hand injury, a claim for a shoulder injury occurring on either accident date would in all likelihood be barred by WCL §§ 18 and 28.
Based upon the above, the Full Board finds that the amendment of the instant claim to include the left shoulder should be disallowed based on the lack of credible lay and medical evidence.
Accordingly, the WCLJ reserved decision filed on March 14, 2011, is AFFIRMED. No further action is contemplated by the Board at this time.