The Full Board, at its meeting held on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 8, 2012.
The issues presented for Mandatory Full Board Review are:
A June 13, 2011, Order of the Chair authorized physical therapy for claimant's established back injury. The carrier requested administrative review of the Order of the Chair.
In a reserved decision filed June 27, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claimant's right knee injury was not causally related to his February 20, 2008, work accident. The claimant sought administrative review of that decision.
The Board Panel majority denied review of the Order of the Chair, finding that such orders are not subject to administrative review pursuant to Workers' Compensation Law (WCL) § 23. The Board Panel majority also reversed the WCLJ's June 27, 2011, reserved decision and amended the claim to include the right knee.
The dissenting Board Panel member found that the claimant did not present sufficient evidence of a causally related knee injury.
The carrier requests Mandatory Full Board Review, arguing that the claim for a right knee injury should be disallowed. The carrier further argues that it was denied due process by the Board Panel refusing to review the June 13, 2011, Order of the Chair.
In rebuttal, the claimant argues that the Board Panel majority properly found that he suffers from a causally related right knee condition.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The Present Claim
The claimant sustained injuries in a work-related motor vehicle accident on February 20, 2008. The carrier filed a Form C-669 (Notice to Chair of Carrier's Action on Claim for Benefits) on October 29, 2008, indicating that it was accepting the claim for injuries to the left side of the back, hip, head, neck, left arm and hands.
Immediately following the accident, the claimant was taken by ambulance to the emergency room of St. Vincent's Medical Center. The medical record from the emergency room notes that the claimant was found restrained in the driver's seat and the claimant complained of pain in his left side, head, left ribs and left hip. The claimant was treated and released.
The claimant was examined by his treating chiropractor, Dr. Morgan, on February 27, 2008. Dr. Morgan noted that the claimant reported he was unaware of the impending accident and that the vehicle was hit on the driver's side. The claimant complained of pain on the left side of his body and his left knee. The claimant continued to undergo regular treatments with Dr. Morgan.
The claimant filed a Form C-3 (Employee Claim) on January 16, 2009, asserting that he suffered injuries to the left hip, back, head, neck, left arm, left hand, and right knee as a result of his February 20, 2008, work accident.
The carrier's consultant, Dr. Michaels, examined the claimant on March 9, 2009, at which time the claimant complained of pain in the neck, back, left hip, shoulders, left wrist, right ankle and ribs. The claimant advised Dr. Michaels that he had suffered injuries to the neck and back as a result of a 2004 motor vehicle accident.
The physician's assistant of Dr. Weinstein examined the claimant on March 18, 2009. The claimant complained of pain in the neck, left shoulder, and low back with upper and lower radicular symptoms. The medical report notes "[n]o symptoms affecting right lower extremity."
In a Notice of Decision (NOD) filed on May 8, 2009, the claim was established for injuries to the neck, back, left hip, and left shoulder, and the claimant's average weekly wage was set at $1,192.18. The WCLJ directed the claimant to produce prima facie medical evidence regarding injuries to the left hand and head.
Dr. Neuman examined the claimant for the first time on January 19, 2010. In his initial report (C-4; doc. #163364294), Dr. Neuman noted that the claimant complained of pain in his left shoulder and right knee. In a January 19, 2010, narrative report (doc. #171466453, pp. 100-103), Dr. Neuman indicated that he had reviewed the report of a December 4, 2009, MRI of claimant's right knee which showed a "[m]arginal inferior articular surface, horizontal cleavage tear, posterior horn medial meniscus…"
The claimant was also examined by Dr. Cardenas on April 2, 2010. The claimant again complained of right knee pain. Dr. Cardenas noted medial tenderness and mild effusion upon examination.
In an NOD filed on July 15, 2010, the WCLJ amended the claim to include a left hand contusion. The WCLJ also found prima facie medical evidence for a right knee injury and authorized left shoulder surgery. The WCLJ's opinion was affirmed by the Board Panel in a memorandum of decision filed on June 13, 2011.
The claimant testified at hearings on July 12, 2010, and April 25, 2011. At the July 12, 2010, hearing, the claimant testified that his right knee "got stuck" during the accident, but also testified that he hit his right knee on the steering wheel. At the April 25, 2011, hearing, the claimant testified that he injured his ribs, shoulder, hip and right knee because he was trying to escape from the car via the passenger's side door when he saw the other vehicle coming toward him. He stated that his knee was "crushed" with the dashboard and noted that the fire department had to remove him from the vehicle. The claimant testified that he advised the emergency room physician and Dr. Morgan that he injured his knee. He stated that he did not twist his knee during the accident.
Claimant was examined by the carrier's consultant, Dr. Barschi, on September 27, 2010. In his report, Dr. Barschi noted that he had reviewed claimant's medical records, including Dr. Neuman's January 19, 2010, report which had discussed the December 4, 2009, MRI of claimant's right knee. Dr. Barschi stated that "[t]here does not appear to be a causal relationship between right knee diagnosis and the accident of February 20, 2008, as he clinically has no positive findings in the right knee and there were no complaints to the right knee in his emergency room visit of February 20, 2008."
Dr. Neuman, an orthopedic surgeon, testified by deposition on April 19, 2011, that the claimant presented with complaints of pain in his ribs, neck, low back, right shoulder, and right knee. The claimant advised Dr. Neuman that he did not have any right knee pain prior to the accident and Dr. Neuman noted that he reviewed records from a prior 2004 accident, but the records did not refer to any right knee injury. Upon examination, Dr. Neuman noted warmth over the right knee with fullness and swelling and flexion was lacking 30 degrees with medical joint line pain. Dr. Neuman testified that a December 4, 2009, MRI of the claimant's right knee showed a tear, but determining whether the tear was the result of trauma or degenerative was difficult. Dr. Neuman opined that the claimant suffers from a medial meniscus tear with chondromalacia and synovitis. He testified that based upon the claimant's history and the fact that the claimant stated he never suffered a right knee injury before, the claimant's 2008 work accident was the cause of his knee injury. Dr. Neuman opined that the claimant's knee injury was the result of a twisting motion during the accident, but stated that the claimant did not say that his knee twisted during the accident. Dr. Neuman noted that he only examined the claimant on January 19, 2010, and did not review any of his other treatment records.
The carrier's consultant, Dr. Barschi, testified by deposition on April 25, 2011, that he examined the claimant on September 27, 2010. Dr. Barschi opined that the only causally related injuries suffered by the claimant were to his neck, back and left shoulder. Dr. Barschi did not find any objective evidence of disability. Dr. Barschi testified that the claimant did not have a causally related knee injury because the claimant did not report any such injury to the emergency room physicians and Dr. Barschi found no evidence of an injury upon examination. Dr. Barschi stated that the December 4, 2009, MRI described the tear as marginal, and this generally means that the radiologist was uncertain whether the MRI actually showed a tear. Dr. Barschi testified that the claimant would have had to have experienced symptoms within a year of the accident if he did in fact injure his knee in the 2008 motor vehicle accident.
The claimant's treating physician, Dr. Cardenas, testified by deposition on April 27, 2011, that she specializes in physical medicine and rehabilitation. She stated that she first examined the claimant for injuries related to his 2008 motor vehicle accident on April 10, 2010. Upon examination, Dr. Cardenas noted medial tenderness and mild effusion. The claimant told Dr. Cardenas that he struck his right knee on the car dashboard during the accident, and Dr. Cardenas diagnosed the claimant as suffering from right knee derangement of the right knee. Dr. Cardenas testified that the claimant reported that his right knee was still painful as of December 2011. Dr. Cardenas noted that the she also treated the claimant for right knee pain as the result of a 2004 motor vehicle accident. She stated that her records were in storage, but she recalled that the claimant "did well" with his knee following the accident, but testified that she could not remember the extent of the claimant's prior knee injury. Dr. Cardenas stated that the claimant only saw a chiropractor following his 2008 accident and that may be why the claimant did not receive treatment for his right knee sooner. Upon cross-examination, Dr. Cardenas testified that knee symptoms usually manifest within two years of an accident. When asked about the fact that other physicians had noted that the claimant reported no knee symptoms, Dr. Cardenas stated that the claimant would not lie.
In a reserved decision filed on June 27, 2011, the WCLJ found that the claimant did not suffer from a causally related right knee injury. The WCLJ noted that the claimant was reluctant to answer questions regarding the accident and that the claimant denied any right knee symptoms until March 18, 2009. The WCLJ also found the outstanding Form C-8.1s in favor of the carrier. The claimant requested administrative review of that decision.
Order of the Chair
On May 12, 2011, Dr. Cardenas filed a Form MG-2 (Attending Doctor's Request for Approval of Variance and Carrier's Response), requesting authorization for physical therapy related to the claimant's back and neck injuries. The Form MG-2 indicates that it was sent to the carrier at an address in Tampa, Florida. The carrier's address listed in the Board file is located in Buffalo, New York.
The Board filed an Order of the Chair on June 13, 2011, authorizing the physical therapy due to the carrier's failure to file a response to the request.
On July 11, 2011, the carrier filed a request for administrative review of the Order of the Chair, acknowledging that such orders are not generally reviewable, but arguing that the Board should rescind the order in the interests of justice because the Form MG-2 was not properly served upon the carrier and the carrier did not have notice of it.
Other Established Claims
The claimant had three established claims in addition to the present claim. The first established claim (WCB Case No. 09171001) for a left knee injury arose out of an accident on July 25, 1991.
The second claim (WCB Case No. 30202244) arose out of a motor vehicle accident on November 18, 2001, and is established for injuries to the head, neck, back, left shoulder and right knee.
The third claim (WCB Case No. 30408667) arose out of a motor vehicle accident on August 26, 2004. The claim was originally established for the back, but was later amended to include the right knee, right foot, neck, and both shoulders. The claimant received a 10% schedule loss of use for the right foot and a 5% loss of use for the right leg in an NOD filed on December 27, 2006.
A medical report dated June 6, 2005, from Dr. Cardenas states that the claimant suffered a consequential right knee injury due to an altered gait resulting from low back pain. An April 10, 2006, follow up report indicated that the claimant had joint line tenderness and pain full range of motion of the right knee. Dr. Cardenas requested authorization for right knee injections.
A November 15, 2006, examination report by Dr. Modugu, the carrier's consultant in the 2004 claim, notes that the claimant had continuing pain in the right knee and diagnosed the claimant a suffering from mild patellar tendonitis. Dr. Modugu opined that the claimant suffered from a 5% schedule loss of use of the right leg as a result of the knee injury. In a report dated February 5, 2007, Dr. Cardenas diagnosed the claimant as suffering from right knee derangement.
The claimant was examined by Dr. Michaels on behalf of the carrier in the 2004 claim on May 11, 2009. Dr. Michaels' examination of the claimant's right knee was normal, with full range of motion and no effusion or tenderness noted.
Dr. Cardenas testified by deposition in regard to the 2004 claim on August 7, 2009. She states that she determined on September 18, 2006, that the claimant suffered from a 5% schedule loss of use of the right leg, based upon persistent pain and a decrease in range of motion to 136 degrees. Dr. Cardenas noted that the claimant's knee condition had not changed between 2006 and the date of the deposition.
The case folder regarding the 2004 claim also includes an MRI report regarding the right knee performed on December 4, 2009. The MRI showed a large inferior articular surface horizontal cleavage tear, intact ligaments, mild degeneration and small effusion with mild synovitis.
Order of the Chair
WCL § 23 provides that any party may within thirty days after notice of the filing of an award or decision of a referee, file with the Board an application in writing for a modification or rescission or review of such award or decision.
If the carrier or Special Fund fails to respond to the variance request, fails to timely deny the variance request, or fails to attach (or to identify in the record) the written report being that is being used as the basis for denial of the variance request, "the variance is deemed approved on the ground that such approval was unreasonably withheld and the Chair will issue an order stating that the request is approved" (12 NYCRR 324.3[d]). An order of the Chair is neither an "award" nor a "decision" of the referee (see WCL § 23; see also 12 NYCRR 300.13) and the Board's regulations specifically provide that an order of the Chair authorizing a variance for medical treatment is not appealable under WCL § 23 (see 12 NYCRR 324.3[d]; see also Matter of Greece Central School, 2012 NY Wrk Comp G0412802; Matter of Brentwood School District, 2013 NY Wrk Comp G0167813).
If an Order of the Chair is defective or was improperly issued, the remedy is to make a written request to the Board for a rescission of the Order of the Chair, with notice to the other parties of interest, which will be addressed administratively by the Board. If it is administratively determined that the Order of the Chair should be rescinded, the Board will do so through a Form EC-325.1 (Rescission of the Order of the Chair). The Board Panel has no authority to direct that the Order of the Chair be rescinded.
Here, the June 13, 2011, Order of the Chair authorized physical therapy for the claimant's back and neck injuries. The Board file does not reflect that a written request for rescission of the Order of the Chair was made. However, the carrier did request administrative review by filing a form RB-89. Since the Order is outside the scope of the Board Panel's review, the carrier's request is denied.
Right Knee Injury
"[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]).
In the present case, the credible evidence does not support a finding that the claimant suffers from a causally related right knee injury arising out of his 2008 accident. While the claimant testified that, shortly after his accident, he advised the emergency room physicians and Dr. Morgan that he had injured his right knee, the medical records do not corroborate his testimony. Rather, the records indicate that the claimant did not report right knee pain related to that accident until he filed the Form C-3 on January 19, 2009, and did not complain of right knee pain to any medical provider until Dr. Michaels' March 9, 2009, examination.
Additionally, the medical evidence regarding whether the claimant's right knee injury is causally related to his 2008 accident is not credible because each of the physicians either had limited or no knowledge of the claimant's prior right knee injuries. Dr. Neuman testified that his opinion was based upon his understanding that the claimant never had right knee pain prior to the 2008 accident. Dr. Michaels' March 9, 2009, report indicates that the claimant advised him only of back and neck injuries related to the 2004 accident. Finally, Dr. Cardenas, who treated the claimant for both the 2008 and the 2004 accidents, testified that the claimant "did well" following the 2004 accident, but noted that she had not reviewed her prior medical records. However, her April 27, 2011, testimony is belied by her August 5, 2007, testimony in WCB Case No. 30408667, wherein she asserted that the claimant continued to experience right knee symptoms and suffered from a 5% schedule loss of use as a result.
Finally, the claimant's testimony regarding the accident was contradicted by the detailed history that he provided to Dr. Morgan shortly after the accident. The claimant testified that he hit his knee on the dashboard of the vehicle while trying to escape from the passenger's side of the car after seeing the approaching vehicle. However, Dr. Morgan's February 27, 2008, detailed report indicates that the claimant was unaware of the pending accident, and was sitting in the driver's seat at the time of impact. Thus, the claimant's testimony regarding the mechanism of his knee injury is not credible.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant failed to submit sufficient credible evidence to amend the claim to include a right knee injury.
ACCORDINGLY, the WCLJ reserved decision filed June 27, 2011, is AFFIRMED, and the carrier's request for review of the June 13, 2011, Order of the Chair is denied. No further action is planned at this time.