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Case # G0234898
Date of Accident: 06/12/2010
District Office: Hauppauge
Employer: Town of Brookhaven
Carrier: Brookhaven, Town of
Carrier ID No.: W805501
Carrier Case No.: TOB20234
Date of Filing of Decision: 06/28/2013
Claimant's Attorney: Fusco, Brandenstein & Rada PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 May 21, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the bilateral total knee replacement surgery recommended by the claimant's treating physician should be authorized.

The Workers' Compensation Law Judge (WCLJ) found the need for the bilateral total knee replacement surgery to be causally related and authorized bilateral total knee replacement surgery.

The Board Panel majority modified the WCLJ's decision, finding that the authorization for bilateral total knee replacement surgery should be denied.

The dissenting Board Panel member found that the WCLJ properly authorized the claimant to have bilateral total knee replacement surgery.

The claimant filed an application for Mandatory Full Board Review on June 20, 2012.

The self-insured employer (SIE) filed a rebuttal on July 5, 2012.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant filed a C-3 (Employee Claim) on July 30, 2012, alleging that he injured both knees at work on June 12, 2010, when he fell while pulling material out of a bin. Claimant indicated in his C-3 that he had previously injured his knees while working for the SIE. Although the SIE initially controverted the claim, it was ultimately established for both knees by a decision filed December 13, 2010.

The claimant allegedly sustained injuries to both of his knees on May 28, 2010, while employed by the SIE (WCB #G0234367), but a finding of no prima facie medical evidence was made in that case. The claimant also filed a claim for a left knee injury that occurred on November 24, 2010, while employed by the SIE (WCB #G0350869), but a finding of no prima facie medical evidence was also made in that case.

The SIE's consulting physician, Dr. Moriarty, examined claimant on October 19, 2010, and February 15, 2011. In his resulting reports, Dr. Moriarty indicated that he could not offer an opinion on whether claimant's knee injuries were causally related to the accidents of May 28, 2010, and June 12, 2010, without first reviewing the medical records pertaining to claimant's knee injuries which pre-dated those accidents.

In C-4AUTH (Attending Doctor's Request for Authorization and Carrier's Response) forms filed on March 14, and 22, 2011, Dr. Hindes requested authorization for a bilateral total knee replacement surgery due to the claimant's post-traumatic arthritis. The SIE timely denied the request based on the contrary medical opinion of its consultant, Dr. Moriarty, who was asked to perform a records review. In his report dated March 22, 2011, Dr. Moriarty indicates that he had reviewed medical records of treatment to claimant's knees prior to his June 2, 2010, work-related accident. Dr. Moriarty indicated that prior to the accident, claimant had been diagnosed with bilateral knee osteoarthritis for which he underwent arthroscopic surgery, which revealed advanced osteoarthritis. According to Dr. Moriarty, claimant's medical records prior to claimant's accident suggest that claimant "would likely require total knee replacements in the near future." Dr. Moriarty stated that "while the claimant indicates that his knees were worsened by the June 12, 2010, accident date, the medical records appear to indicate that the claimant was heading for total knee replacement nonetheless, regardless of the June 12, 2010, accident date."

Dr. Moriarty concluded that "in my opinion, there is no documentation that the claimant's condition was in any [sic] worse than it was prior to his fall of June 12, 2010, in that claimant was apparently heading for total knee replacement surgery, based on his failure to improve following viscosupplementation injections and bilateral knee arthroscopies with complaints of pain reported to his orthopedist, ongoing and up to June of 2010."

The claimant previously testified at a hearing held on December 8, 2010, that he is employed by the Town of Brookhaven as a laborer. He was involved in a work-related incident on May 28, 2010, while he was lifting a television set and his legs got tangled in the cord causing him to fall and injured his knees. The claimant stated that he provided his supervisor with notice, but that he did not seek medical treatment, finished his work day and did not miss any time from work. On June 12, 2010, he injured both of his knees when he fell into a dumpster. He could not finish work on that date and had his wife pick him up and drove him to the emergency room at Mather Hospital. The claimant followed up with Dr. Hindes, with whom he had never previously treated, and Dr. Hindes told him that he needed bilateral total knee replacement surgery. The claimant missed a week from work following the June 12, 2010, accident. He sustained injuries to both knees in a slip and fall accident in the SIE's parking lot on November 24, 2010. He is still working in full pay status with the SIE. He had issues with his knees prior to May 28, 2010, and had arthroscopic surgery to both knees in early 2010 performed by Dr. Dowd. He returned to work with the SIE at full wages following the surgeries.

On cross-examination, the claimant testified that he completed accident reports for the May 28 and June 12, 2010, incidents and filed them with his foreman. The claimant did not see Dr. Dowd following the surgeries. The left knee arthroscopic surgery was possibly done on January 8, 2010, and the right knee arthroscopic surgery was possibly done on March 17, 2010. The claimant underwent physical therapy after the surgeries. Dr. Dowd informed him prior to the May 28, and June 12, 2010, incidents that he would probably need a partial knee replacement surgery "somewhere years down the line." While he was out following the June 12, 2010, work-related injury, he was paid his full wages, but had to use his sick time. He is not currently undergoing physical therapy, and cannot recall the last date he saw Dr. Hindes, but it was not too long ago. He is presently working in the same job with the employer in full time status.

The SIE's consultant, Dr. Moriarty, testified at a deposition held on July 22, 2011, that he is licensed to practice in New York, that his specialty is orthopedic surgery and he is certified and coded by the Board. He initially examined the claimant on October 19, 2010, and received a history of a work-related accident that occurred on May 28, 2010, while lifting a television set into a dumpster. The claimant reported that he tripped and fell on the cord and injured both knees, but his left more than the right. Following the accident he treated with Dr. Hindes and received physical therapy, and also received viscosupplementation injections that did not work. Dr. Hindes ultimately recommended surgery. The claimant had a pre-existing knee condition and sought treatment with Dr. Dowd as a result. He had surgery on both of his arthritic knees in March of 2010. The claimant's recollection was that he was informed thereafter by Dr. Dowd that he had arthritis and needed bilateral knee replacement surgery. Dr. Dowd was not treating the claimant at the time of his injury. The claimant is a laborer for the SIE. Dr. Moriarty was of the opinion that the claimant sustained bilateral knee contusions which were an exacerbation of a pre-existing advanced degenerative condition.

Dr. Moriarty testified that at the time of his second examination of the claimant, on February 15, 2011, the claimant was still treating with Dr. Hindes, was still working and was awaiting total knee replacement surgery. Upon physical examination of the claimant, his findings were essentially unchanged from his prior examination. He conducted a record review after his last examination of the claimant, and the medical records he reviewed indicated advanced arthritis and bone-on-bone osteoarthritis. He was of the opinion that claimant's knee conditions were no worse after the June 12, 2010, fall, the claimant already had been found to have bone-on-bone osteoarthritis and already had arthroscopic surgery. The claimant failed to improve with other methods of treatment and was essentially told that he needed total knee replacement surgery prior to his work-related accident. Dr. Moriarity did not see how this injury either worsened or accelerated or caused him to have a problem that he did not already have prior to the May 28, 2010, incident. The finding in 2008, confirmed by x-ray and arthroscopic surgery, that the claimant had bone-on-bone osteoarthritis was an indication that he was a candidate for a total knee replacement surgery. The claimant was informed in 2008 by Dr. Petraco that he needed bilateral knee replacement surgery, and that things went "down-hill" after Dr. Dowd performed arthroscopic surgery on the claimant's knees in early 2010. He was of the opinion that claimant should have received total knee replacement surgery instead of the arthroscopic surgery, but that Dr. Dowd did not perform knee replacement surgery and felt he could "buy the claimant some time" by performing arthroscopic surgery.

On cross-examination, Dr. Moriarty testified that the claimant was in need of bilateral knee replacement surgery. The claimant had reported that his actual pain had worsened following his June 12, 2010, accident, and that the claimant reported to him that he had been working full time for three years with the employer. He did not recall whether he was informed by the claimant whether his ability to perform his job duties changed after he sustained his May 28, 2010, work-related injury. He was of the opinion that the claimant's need for bilateral total knee replacement surgery was imminent based on the bone-on-bone finding following the March of 2010 surgery. Based on the failed treatments, lack of improvement, and his age and weight, total knee replacement surgery was coming one way or the other. He was not aware of the scheduling of bilateral total knee replacement surgery for the claimant, but believed that need for surgery was "imminent" (Deposition, Dr. Moriarty, 2/15/11, p. 18). Dr. Moriarity opined that the claimant's June 12, 2010, fall into a dumpster did not change his condition, diagnosis or outcome in any way. When asked whether it was possible that the work-related injury accelerated the claimant's need for the surgery, Dr. Moriarty responded, "It's possible. It's hard to say" (Id. at 20). His records indicate that the claimant has had some difficulty working in his position subsequent to June 12, 2010, and that upon performing a records review, he did not see any referral from Dr. Dowd to another surgeon for bilateral total knee replacement surgery.

The claimant's treating physician, Dr. Hindes, testified at a deposition held on August 15, 2011, that he is licensed to practice in New York State and his specialty is orthopedic surgery. He is Board certified and coded in orthopedic surgery. He first examined the claimant on October 11, 2010, and he received a history from the claimant of moving some metal on June 12, 2010, losing his balance and falling to his knees and having an acute onset of pain. The claimant provided a history of pre-existing bilateral degenerative arthritis and arthroscopic surgery to both knees six months prior to his first examination of the claimant. Upon examination, the claimant was walking with an antalgic gait on the left side, had a range of motion of zero to 130 degrees bilaterally, and crepitus on extension and flexion bilaterally, which was worse on the left and had a small effusion in the left side. He diagnosed the claimant with bilateral degenerative arthritis worse on the left side. The claimant's injury on June 12, 2010, caused an acute exacerbation of his previously existing degenerative arthritis. He discussed viscosupplementation and knee replacement surgery with the claimant and ultimately recommended total left knee replacement surgery. Dr. Hindes later recommended total right knee replacement surgery, and opined that the injury of June 12, 2010, caused an exacerbation of his previously existing arthritis, which resulted in his need for earlier knee replacement surgery. He did not see any prior medical reports and relied on the history provided by the claimant in arriving at his conclusions.

On cross-examination, Dr. Hindes testified that he first saw the claimant on June 18, 2010, six days after he sustained his work-related injuries, and that his previous testimony on direct examination that he had first examined claimant on October 11, 2008, was in error. Dr. Hindes conceded that he had not reviewed any of claimant's medical records for treatment rendered prior to his June 12, 2010, accident. He based his opinion that the June 12, 2010, accident exacerbated claimant's pre-existing condition on the history provided by claimant that he had been doing pretty well prior to the accident. An x-ray of the claimant's knees taken on June 18, 2010, indicated bilateral degenerative arthritic changes, significantly worse on the left, and that the arthritic conditions pre-existed the claimant's June 12, 2010, accident. Dr. Hindes testified he claimant's arthritic condition pre-dated his arthroscopic surgeries. He could not tell if there was any progression in his arthritic condition between the arthroscopic procedures claimant underwent in early 2010 and the date Dr. Hindes first examined him. The claimant provided him with a history of doing "pretty well" prior to his June 12, 2010, fall, but did not state that he was completely asymptomatic. Dr. Hindes testified that claimant placed additional stress on his lower extremities by virtue of being obese. He was unsure of the number of days the claimant missed from work following the June 12, 2010, accident. He did not know if the claimant was performing his regular job thereafter. His findings following the June 18, 2010, examination were antalgic gait on the left, range of motion zero to 130 degrees bilaterally, bilateral crepitus and an effusion on the left. These findings are consistent with someone with pre-existing degenerative arthritis in both knees. Dr. Hindes testified that the claimant "was going to end up with a knee replacement surgery at some point," even if the June 12, 2010, accident did not occur, and that "the question on the table here is did the injury of June 2010 speed up the" need for surgery. (Deposition, Dr. Hindes, 8/15/11, p. 17). Dr. Hindes responded to this self-posed question:

And that answer is I don't know. Nobody knows. Is it possible? Yes, it is certainly possible that the injury caused an acute exacerbation because that's the history he gave me. Was he going to need the knee replacements anyway? At some point, yes. (Id.).

In a decision filed on August 31, 2011, the WCLJ found the need for the bilateral total knee replacement surgery to be causally related, authorized causally related medical treatment, authorized bilateral total knee replacement surgery as requested by Dr. Hindes, resolved the C-8.1s in favor of the medical provider, and directed no further action.

LEGAL ANALYSIS

"Whether the claimant would have required total knee replacement surgery in the absence of the work accident is immaterial. The work accident accelerated the need for the surgery, thus making it fully the liability of the carrier (see Matter of Avis, 2011 NY Wrk Comp 30704661, citing Matter of J Kings Food Service Professionals, 2010 NY Wrk Comp 40707678)."

"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 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). 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 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]).'[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 [1997], affd 90 NY2d 914 [1997]; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 [2005])" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]).

The Full Board finds, upon review of the evidence of record, that the claimant's need for bilateral total knee replacement surgery was not caused or accelerated by his established June 12, 2010, work-related accident, and that surgery should not be authorized.

The claimant testified, before the issue of authorization for bilateral total knee replacement surgery was raised, that Dr. Dowd, the surgeon who performed his arthroscopic knee surgeries, informed him prior to the two 2010 work-related incidents, that he would need only a "partial" knee replacement surgery, but that the surgery would not be needed until "years down the line."

Dr. Hindes testified on direct examination that the claimant informed him that while he was symptomatic prior to the June 12, 2010, accident, he was doing pretty well, that the claimant's June 12, 2010, fall (which caused claimant to miss a week of work) caused an acute exacerbation of the claimant's pre-existing bilateral degenerative arthritis, and that it was certainly possible that this acute exacerbation of his condition accelerated the need for bilateral total knee replacement surgery. However, on cross-examination, Dr. Hindes conceded that he had not reviewed any of claimant's medical records for treatment rendered prior to his June 12, 2010, accident, and that he based his opinion that the June 12, 2010, accident exacerbated claimant's pre-existing condition on the history provided by claimant that he had been doing pretty well prior to the accident. Dr. Hindes further testified that he did not know whether the June 12, 2010, accident hastened his need for a bilateral total knee, although it was possible.

The SIE's consultant, Dr. Moriarty, examined claimant on October 19, 2010, and February 15, 2011, but declined to offer an opinion on whether claimant's knee injuries were causally related to the accidents of May 28, 2010, and June 12, 2010, without first reviewing the medical records pertaining to claimant's knee injuries which pre-dated those accidents. However, after being provided with those records and being afforded the opportunity to compare the pre- and post- accident medical evidence, Dr. Moriarty concluded that claimant's accident of June 12, 2010, did not contribute to his need for surgery. When asked on cross-examination whether it was possible that the work-related injury accelerated the claimant's need for the surgery, Dr. Moriarty did concede that "It's possible. It's hard to say."

That the opinion of Dr. Moriarty was rendered based on a comparison of the pre- and post- accident medical reports regarding claimant's knees, whereas Dr. Hindes testified that he did not review any reports which pre-dated claimant's work injuries, suggests that the opinion Dr. Moriarty should be given greater weight and deference. Moreover, Dr. Hindes concession on cross-examination that he did not know whether claimant's accident hastened his need for surgery, although it was "possible," further undermines Dr. Hindes opinion, such that it cannot be relied upon to conclude that claimant's work-related accident hastened the need for claimant's surgery.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding the need for bilateral total knee replacement was not caused, contributed to, or hastened by claimant's work-related accident.

CONCLUSION

Accordingly, the WCLJ decision filed on August 31, 2011, is MODIFIED to deny the authorization for bilateral total knee replacement surgery. No further action is planned by the Board at this time.