The Full Board, at its meeting on November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on February 14, 2013.
The issue presented for Mandatory Full Board Review is whether the case should be referred to an impartial specialist to address the issues of consequential transverse myelitis and further causally related disability.
The Workers' Compensation Law Judge (WCLJ) found that claimant's transverse myelitis was not consequentially related, crediting the testimony of the carrier's consultants. The WCLJ further found that the medical evidence also supported a finding of no further causally related disability.
The Board Panel majority held in abeyance its determination with respect to the claimant's application for review and found that the case should be referred to an impartial specialist in neurology to address the issues of consequential transverse myelitis and the claimant's overall degree of disability.
The dissenting Board Panel member found that there was no need for an examination by an impartial specialist as the medical evidence in the record is not inconsistent or contradictory, and when taken as a whole, supports the findings of the WCLJ.
On March 6, 2013, the carrier filed an application for Mandatory Full Board Review, arguing that referral to an impartial specialist is not appropriate in this case, because the medical opinions of the five doctors who testified are not truly in conflict.
On April 2, 2013, the claimant filed a rebuttal asserting that the decision directing an impartial specialist is just and proper, and should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On December 1, 2008, the claimant, then a 48 year old mechanic, injured his back while changing tires on a vehicle at work. The case is established for a back injury. The claimant also raised consequential transverse myelitis, a neurological condition consisting of the inflammatory process of the spinal cord.
The record has been developed with medical testimony from the claimant's treating physician and neurologists, as well as from the carrier's consulting neurologists, on whether the claimant has consequential transverse myelitis, as well as on the issue of further causally related disability.
On August 17, 2011, the claimant's treating neurologist, Dr. Perel, testified by deposition that he first examined the claimant on January 24, 2011. At his initial examination, claimant reported that the day after the accident the claimant reported weakness in the left lower extremity and foot drop, and that the claimant's condition immediately worsened. He was soon thereafter diagnosed with having transverse myelitis. Based upon his review of the claimant's medical records, including a history of herniated discs dating back to at least 1995, Dr. Perel opined that the transverse myelitis appeared to be idiopathic or of an unclear etiology and not causally related to the back injury of this file. He testified that there have been rare cases where transverse myelitis is related to a traumatic event, but trauma is not usually related to the development of this condition. He further testified that, in his opinion, the claimant had an overall total disability and that a portion of the disability was related to the established low back injury. However, he was unable to apportion the claimant's disability between the established back injury and transverse myelitis, but admitted that the majority of claimant's disability related to the transverse myelitis.
On September 8, 2011, the claimant's treating neurologist, Dr. Head, testified by deposition that he diagnosed the claimant with Guillain-Barre syndrome and transverse myelitis. Dr. Head testified that the lumbar MRI revealed some small herniated discs at L4-5 and L5-S1, but that these were not likely the cause of the claimant's disability. He testified that, in his opinion, the trauma of the injury did not cause the transverse myelitis, but that the accident may have acted on this condition to make it symptomatic. He indicated that the actual pathology of transverse myelitis appeared to be primarily inflammatory. He testified that this condition could be caused by trauma. He opined that 30 percent of the transverse myelitis is related to the work accident and that the claimant was totally disabled.
On September 8, 2011, the claimant's treating physician, Dr. Szeles, testified by deposition that he diagnosed the claimant with transverse myelitis. He opined that this condition is casually related to the work accident of 2008, but that he would defer to a neurologist. He further opined that the claimant was totally disabled and that this disability was completely attributable to the transverse myelitis condition.
On September 7, 2011, the carrier's consulting neurologist, Dr. Singh, testified by deposition that he examined the claimant on September 23, 2010, and that he had reviewed the claimant's medical history, including MRI reports. He opined that the claimant's symptoms of pain radiating to both legs and paralysis were unrelated to the accident of this file. Dr. Singh testified that the 2008 accident could not have aggravated the claimant's pre-existing chronic back condition and that the claimant's transverse myelitis is not related to the 2008 work accident. He concluded that the claimant's disability is not related to the 2008 work accident.
On September 9, 2011, the carrier's consulting neurologist, Dr. Tikoo, testified by deposition that he examined the claimant on May 26, 2011. He diagnosed the claimant with underlying transverse myelitis and a causally related lumbar sprain. He opined that the claimant continued to have a moderate to severe disability, but that this disability was entirely related to the transverse myelitis, and not to the accident of this file. He opined that there is no credible medical literature to support the position that transverse myelitis can be caused by trauma.
In a reserved decision filed on December 22, 2011, the WCLJ determined that the claimant's transverse myelitis condition was not consequentially related, crediting the testimony of the carrier's consultants. The WCLJ found the testimony of Dr. Head not to be credible with respect to the issues of causal relationship or further causally related disability, and further found the testimony of Dr. Perel to be credible, generally, but neither persuasive nor convincing on the issue of whether the transverse myelitis could have been caused by a physical trauma. The WCLJ further found that the credible medical evidence also supported a finding of no further causally related disability.
The courts have long recognized that a consequential injury is compensable, provided there is a sufficient causal nexus between the initial work-related injury for which a claim is established and the subsequent injury (see e.g. Matter of Barre v Roofing & Flooring, 83 AD2d 681 ; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215 AD2d 943 , lv den 87 NY2d 806 , Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 ).
"The Board clearly has the authority to appoint an impartial specialist during the review process (see Workers' Compensation Law § 13[e]; see e.g. Matter of Gullo v Southern Erie Clinical Servs., 258 AD2d 689 ), and its decision whether to do so in a particular case involves the exercise of discretion (see generally Matter of DeBlasio v New York City Dept. of Highways, 246 AD2d 837 , lv denied 91 NY2d 813 ; Matter of Li Greci v Greene, Tweed & Co., 17 AD2d 673 , lv dismissed 12 NY2d 644 , cert denied 372 US 977 )" (Matter of Zingler v Eastman Kodak Co., 288 AD2d 564 ).
Here, based upon a review of the record and the preponderance of the evidence in the record, the Full Board finds that the appointment of an impartial specialist in neurology in this case is appropriate, as the medical evidence in the record on the issue of whether a causal nexus exists between the claimant's work-related back injury and his transverse myelitis condition is inconsistent, contradictory, and inconclusive.
ACCORDINGLY, the Board Panel's findings with respect to the claimant's application for review are held in abeyance. The claimant is directed to be examined by an impartial specialist in the field of neurology at a location convenient to the claimant. The claimant and all pertinent information from the case folder are to be referred to the impartial specialist on the issues of: correct diagnosis; whether the diagnosed condition was caused or aggravated by the December 1, 2008, accident; overall degree of disability due to the work-related accident; whether there is a disability due to transverse myelitis, if the diagnosis of transverse myelitis is correct; and whether any disability due to transverse myelitis is causally related to the December 1, 2008, accident or is unrelated to the compensable accident. The impartial specialist shall order or perform all tests deemed necessary on the issues. Thereafter, the parties shall have the opportunity to cross examine the impartial specialist. The WCLJ shall have the hearing minutes transcribed and the case shall be returned to the Board Panel for a decision. The case is continued.