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Case # G0256374
Date of Accident: 04/06/2010
District Office: NYC
Employer: Berkshire Bank
Carrier: Federal Insurance Company
Carrier ID No.: W080006
Carrier Case No.: 0405-10-039376
Date of Filing of Decision: 07/12/2013
Claimant's Attorney: Sher, Herman & Bellone, P.C.
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on September 7, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's need for bilateral total knee replacement surgery is causally related to his work-related accident.

The Workers' Compensation Law Judge (WCLJ) found that claimant's need for bilateral total knee replacement surgery is causally related to his work-related accident.

The Board Panel majority found that the credible medical evidence contained in the record supports a finding that the claimant's work-related accident caused his previously asymptomatic degenerative knee conditions to become symptomatic and disabling. The Board Panel majority therefore adopted the opinion of the WCLJ, and found that the claimant's need for bilateral knee replacement surgery is causally related.

The dissenting Board Panel member would rescind the WCLJ's authorization for bilateral total knee replacement surgery.

On October 5, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that the overwhelming weight of the credible evidence contained in the record establishes that the claimant's need for bilateral knee replacement surgery is unrelated to his work-related accident, and that the claimant's need for the surgery is solely a result of his preexisting chronic arthritis.

On October 24, 2012, the claimant filed a rebuttal asserting that the Board Panel majority was correct to have found that the claimant's need for the surgery is causally related to the work-related injury which exacerbated the underlying osteoarthritis.

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

FACTS

In a medical narrative dated April 15, 2010, the claimant's treating orthopedic surgeon, Dr. Strauss, indicated that the claimant had a work-related accident on April 6, 2010, and that "prior to the accident, the claimant was in good health with no sign of disability." The doctor noted that the claimant has bilateral varus knees with crepitus and decreased range of motion, as well as underlying varus deformity and end-stage osteoarthritis of both knees. Dr. Strauss concluded that the claimant was totally disabled and unable to work due to the pain he was experiencing.

In a medical narrative dated April 21, 2010, Dr. Strauss indicated that the claimant remained symptomatic in both knees, and noted that the claimant was having difficulty climbing stairs. The doctor indicated that the claimant's underlying arthritis was still an issue, and noted that he informed the claimant that it was "quite possible that the fall of April 6, 2010, exacerbated his underlying problem."

In a medical narrative dated May 25, 2010, Dr. Strauss requested authorization for bilateral total knee arthroplasty stating that the claimant "remained significantly symptomatic. His activities of daily living are restricted. He has pain and problems with his gait. He is ambulating with significant difficulty."

In a Practitioner's Report of Independent Medical Examination (IME-4) dated June 24, 2010, the carrier's consulting orthopedic surgeon, Dr. Carter, noted that at the time of the examination, the claimant complained of pain in his knees, with pain on rising from a seated to a standing position, pain on ascending or descending stairs, and after more than five minutes of standing. According to Dr. Carter, a physical examination of the claimant on June 23, 2010, revealed the following:

[Claimant] has bilateral varus knees, somewhat greater on the left than on the right. The pain described in the right knee is anteromedially at about the joint line. The left knee pain is localized anterolaterally, just above the joint line. The right knee moves from about 6 degrees in a fixed flexion attitude to about 95 degrees. The left knee has a 12 degree fixed flexion attitude and moves to perhaps 80 or 85 degrees. Both knees are grossly stable. The left knee has large medial marginal osteophytes. The right knee has smaller medial osteophytes. The right knee has 6 degrees of varus (bow leg) and the left knee measures 12 degrees of varus.

Dr. Carter concluded that "[claimant's ] disability, which is partial to moderate, stems from his arthritis," and that "whatever increase in disability existed immediately following the fall was not more than a temporary disability resulting from the bruising which ensued as a result of the accident."

In an addendum report dated July 28, 2010, Dr. Carter opined that "the [claimant] was a surgical candidate for knee joint arthroplasty bilaterally, before the fall in question and that he is no more and no less a candidate at this time." Dr. Carter concluded that there was no identifiable exacerbation of the claimant's knee condition as a result of the claimant's work-related accident and thus the need for bilateral knee replacement surgery was unrelated to the work-related accident.

In a deposition taken on December 16, 2010, Dr. Strauss testified in accordance with his medical reports. Dr. Strauss testified that he first examined the claimant on April 15, 2010, and that he diagnosed the claimant with a lumbosacral muscle strain and significant internal derangement of both knees. He opined that the injuries were causally related to claimant's work-related accident. Dr. Strauss testified that the claimant was treated with steroid injections, oral medications, physical therapy and the use of braces. According to Dr. Strauss, the claimant attempted to return to work but was unable to continue due to severe pain and, as a result, Dr. Strauss found the claimant to be totally disabled. Dr. Strauss testified that he recommended bilateral knee replacement surgery and opined that the need for such surgery was causally related to the work-related accident.

On cross-examination, Dr. Strauss testified that the fall caused a breakage of the articulus cartilage which caused the final breakdown of the knee joint. He further testified that the impact to the femoral patella on top of the tibia caused at the time of the fall transcended into the knee joint and sheared the articular cartilage; this caused injury to the articular anatomy of the joint. While Dr. Strauss acknowledged that the claimant had preexisting degenerative arthritis in both knees, he noted that the claimant had been asymptomatic, had worked without complaint, and had played recreational basketball with his children before the accident. In addition, Dr. Strauss testified that the claimant had not previously been undergoing treatment for his knees. Dr. Strauss testified that while the diagnostic tests showed degeneration, the subjective and objective clinical manifestations could have occurred within a short period of time. According to Dr. Strauss, "it is very common in the orthopedic community to see patients that have asymptomatic terrible x-rays that continue to perform until they have an accident that results in an exacerbation of the breakdown of cartilage which causes the final breakdown of the knee joint" (Strauss Deposition 12/16/10, pg. 14). While Dr. Strauss acknowledged that neither MRI of the knee showed bone bruising, which would be indicative of trauma, Dr. Strauss testified that both MRIs of the knees were taken too long after the accident for the absence of bone bruising to be significant. Dr. Strauss further testified that the claimant had suffered a soft-tissue injury to the back on the date of his fall and that the ongoing knee problems were exacerbating his back pain due to altered gait.

In a deposition taken on December 21, 2010, Dr. Carter testified in accordance with his IME reports. Dr. Carter testified that his findings upon physical examination of the claimant showed a collapse of the medial joint space due to arthritic changes in the knee. Dr. Carter opined that the claimant's bilateral knee conditions were not causally related to the claimant's work-related accident, but were the result of a significant, longstanding, arthritic process. Dr. Carter testified that neither the bone spurs nor varus would have developed within 2 ½ months of the fall. While Dr. Carter believed that knee replacements would be appropriate for the claimant, he opined that the work-related accident had not caused a permanent exacerbation of the underlying problem which would cause the need for knee arthroplasty. Dr. Carter also testified that the claimant did not have any disability related to the accident that he could prove in any objective way. The MRIs showed chronic conditions and no evidence of acute change.

In a reserved decision filed on June 10, 2011, the WCLJ found that the need for bilateral total knee replacement surgery is causally related to the claimant's work-related accident and authorized the surgery. The WCLJ also found the claimant to have an ongoing moderate disability based upon the claimant's complaints of pain, diagnostic test results, reduced range of motion, difficulty ascending and descending stairs, difficulty rising from a seated position, gait deviation, use of bilateral knee braces and a cane, and the claimant's failure to respond to conservative treatment.

LEGAL ANALYSIS

That an "injury relates to a pre-existing 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 [2000], appeal dismissed, 96 NY2d 731 [2000] [internal quotation marks and citations omitted]).

In the present case, it is not disputed that the claimant suffered from chronic osteoarthritis in both of his knees prior to the work-related accident that occurred on April 6, 2010. However, the credible evidence in the record establishes that prior to April 6, 2010, the claimant was asymptomatic and was not undergoing treatment for his knees. In addition, Dr. Strauss credibly testified that the claimant's need for bilateral knee replacement surgery is causally related to the claimant's work-related accident. According to Dr. Strauss, prior to his fall on April 6, 2010, the claimant was not seeing a doctor for his knees, he was not undergoing treatment for his knees, he engaged in athletics and he was able to stand at work. Dr. Strauss testified that "it is very common in the orthopedic community to see patients that have asymptomatic terrible x-rays that continue to perform until they have an accident that results in an exacerbation of the breakdown of cartilage which causes the final breakdown of the knee joint." In the case of the claimant, Dr. Strauss testified that the fall caused a breakage of the articulus cartilage which caused the final breakdown of the knee joint. Dr. Strauss testified, specifically, that the impact to the femoral patella on top of the tibia caused at the time of the fall transcended into the knee joint and sheared the articular cartilage. According to Dr. Strauss, this caused injury to the articular anatomy of the joint, exacerbating the claimant's preexisting knee condition.

Therefore, the Full Board finds, based upon a preponderance of the evidence, that the claimant's need for bilateral knee replacement surgery is causally related to the claimant's work-related accident, which occurred on April 6, 2010.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on June 10, 2011, is AFFIRMED. No further action is planned by the Board at this time.