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 claimant's left knee condition is a compensable injury resulting from an accident or an occupational disease.
The Workers' Compensation Law Judge (WCLJ) determined that the claimant's left knee condition was due to a fall at home, and unrelated to her work activities.
The Board Panel majority affirmed the WCLJ.
The dissenting Board Panel member found that the credible medical evidence supports a finding that the claimant sustained a work-related injury to her left knee. The dissenting Board Panel member found that the medical evidence supports a finding that the claimant's work-related activities exacerbated the claimant's pre-existing left knee condition, and would establish the claim.
On March 14, 2013, the claimant filed an application for Mandatory Full Board Review arguing that the record does not support the conclusions and findings of fact reached by the Board Panel majority, as each of the medical opinions rendered in relation to this matter found the claimant's left knee injury to be work related.
On April 11, 2013, the carrier filed a rebuttal arguing that the evidence in the record shows that the claimant's left knee condition was due to a fall at home, and is unrelated to her work activities.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On June 22, 2010, claimant, an environmental service worker, injured her left knee when her knee popped as she was squatting down to wipe an IV pole.
In numerous C-4s (Doctor's Progress Report) dated October 27, 2010, Dr. Montalbano indicated that he examined the claimant on numerous occasions between July 15, 2010, and September 15, 2010, and that the claimant's left knee condition was caused by the work-related incident on June 22, 2010; however, Dr. Montalbano does not provide a history of the claimant's injury.
In a medical narrative dated February 21, 2011, Dr. Nagendra noted that he first saw the claimant on June 26, 2008. According to Dr. Nagendra, the claimant came to see him for injuries three weeks after she fell in her home. Dr. Nagendra noted that the claimant had injured her right shoulder, right arm and right side of her low back; that the claimant was wearing a brace on her left knee; and that the claimant was receiving physical therapy. Dr. Nagendra further noted that an x-ray of the claimant's knees dated June 27, 2008, was negative for evidence of fracture or dislocation and there was no evidence of distention of the suprapatellar bursa to suggest joint effusion. According to Dr. Nagendra, the claimant received injections to the both knees from 2008 through 2010.
In a Practitioner's Report of Independent Medical Examination (IME-4) dated May 20, 2011, the carrier's consultant, Dr. Rubinshteyn, noted that he examined the claimant on May 20, 2011, and that the claimant reported that she has had left knee pain for many years that was slowly getting worse. The claimant stated that she was getting injections and that she had undergone physical therapy with minimal relief. Dr. Rubinshteyn further noted that the claimant reported that on June 22, 2010, she injured her left knee in a work-related accident when she squatted and felt a sharp pain or "pop" in her knee. According to Dr. Rubinshteyn, the claimant was diagnosed with a Baker's Cyst in the back of her knee with significant swelling; the claimant had left knee arthroscopy in September 2010 and a total left knee replacement in November 2010. With respect to causal relationship, Dr. Rubinshteyn opined:
Based on the information available and the history as described by the claimant...the left knee is causally related to the accident on June 22, 2010; however, it was an exacerbation of pre-existing Arthritis affecting the claimant's left knee.
During a hearing on May 9, 2011, the claimant testified that she was an environmental service worker for the employer for twelve years, and during that time her duties included cleaning everything that was in the patient care areas that she was responsible for, as well as the offices in the three story building. In order to perform her job duties, the claimant "had to squat and bend constantly" (Hearing Minutes 5/9/11, pg. 5). The claimant testified that she worked 7.5 hours per day, and that she spent the majority of the day cleaning. According to the claimant, on June 22, 2010, she was bending while cleaning an IV pole when she felt a pop in her left knee. The claimant stated that when she tried to stand up she had difficulty standing straight. The claimant further stated that she had to walk with a limp and her knee had swollen. The claimant testified that she sought medical treatment that day and she was diagnosed with an eight centimeter Baker's cyst, which needed to be drained. The claimant further testified that she had two surgeries on her knee, an attempted partial knee replacement in September 2010, and a total knee replacement on November 5, 2010. According to the claimant, she received short-term disability from July 8, 2010, to January 5, 2011.
On cross-examination, the claimant acknowledged that she was seeing Dr. Nagendra for her left knee between 2008 and 2010, and stated that she would sporadically miss time from work during this time period due to her left knee. The claimant conceded that she had sought medical treatment for her left knee even before June 2008, and that she was diagnosed with a meniscus tear in 1991. The claimant stated that in June 2008 she injured her back and knee when she fell at home, causing her to be out of work for five months. The claimant acknowledged that she began receiving knee injections in 2008, and that she continued to receive the injections until her surgery. According to the claimant, Dr. Nagendra was the first doctor to tell her that her left knee condition was work-related. The claimant stated that Dr. Montalbano also told her that her left knee condition was work-related. The claimant testified that Dr. Montalbano helped her complete her disability form, and that neither she nor Dr. Montalbano indicated on the disability form that the condition was work-related. According to the claimant, at the time that the disability form was completed, the concern was not the cause of the claimant's knee condition; the focus was on the treatment. Dr. Montalbano did not discuss the cause of the claimant's knee condition until later on, and he did not issue a report indicating that her condition was work-related until September 28, 2010. The claimant further indicated that she saw Dr. Givinazzo on July 1, 2010, and that he helped her complete a disability form. The claimant stated that she did not discuss her condition and whether it was work related with Dr. Givinazzo, and she did not treat with Dr. Givinazzo after July 1, 2010.
On re-direct, the claimant testified that after she was diagnosed with a tear in 1991, her knee condition improved, and remained the same until 1998, when she started working as an environmental service worker for the employer. The claimant further testified that prior to June 22, 2010, the issue of knee replacement surgery never came up.
During the hearing on May 9, 2011, the claimant's supervisor testified that the claimant's job as an environmental service worker required bending, pulling and pushing.
During the hearing on May 9, 2011, a case manager for the employer testified that she handles all work-related injury cases. According to the witness, she investigated the claim and found that the claimant's doctors filed disability forms dated July 2, 2010, and July 9, 2010, which indicated that the injury was not work related. The witness indicated that the forms were signed by the claimant.
During a deposition on April 18, 2011, Dr. Montalbano testified that he first treated the claimant on July 12, 2010, when the claimant complained of left knee pain. According to Dr. Montalbano, the claimant has had left knee pain since 1991 when she was diagnosed with a meniscus tear. Dr. Montalbano testified that at the time of the examination, the claimant provided him with an occupational history. Dr. Montalbano further testified that he examined the claimant and diagnosed her with degenerative arthritis of the left knee and meniscal degeneration. Dr. Montalbano stated that any type of work where there is repetitive stress on the joint would likely be consistent with an exacerbating or aggravating factor relating to the condition. Dr. Montalbano described the claimant's condition as a condition that progresses over time and noted that the claimant had advanced degenerative changes which is the typical progressive course of the disease. Dr. Montalbano testified that he considered the repetition and prolonged standing and walking involved in the claimant's employment to be aggravating factors. According to Dr. Montalbano, the claimant had total knee replacement surgery on November 5, 2010, which was causally related to his diagnosis. Dr. Montalbano testified that a person with the claimant's condition who engages in the type of physical work that the claimant was engaged in is more likely to experience a progression of symptoms resulting in a total knee replacement, than someone who works in a sedentary job.
On cross-examination, Dr. Montalbano stated that he was unaware of what caused the claimant's torn meniscus in 1991. He acknowledged that, absent any repetitive type trauma, life in general will cause degenerative meniscus tears and will also cause degenerative arthritis. The doctor acknowledged that there is no way to say with any degree of medical certainty that it was the claimant's actual occupation which brought her knee to this point.
During a deposition on July 18, 2011, Dr. Nagendra testified that he first saw the claimant on June 26, 2008. Dr. Nagendra testified that the claimant came to see him for low back pain; however, she also complained of pain in her shoulder and knees. According to Dr. Nagendra, he examined the claimant's knees on June 26, 2008, and he treated the claimant's knees subsequently for several months. Dr. Nagendra testified that when he began treating the claimant's left knee she was complaining of pain, swelling and stiffness. Dr. Nagendra further testified that the claimant provided him with an occupational history. According to Dr. Nagendra, his understanding was that the claimant's knee condition was caused by the wear and tear that the claimant sustained over a period of time in the course of performing her work activities. Dr. Nagendra stated that he diagnosed the claimant with arthritis and chronic contusion. Dr. Nagendra further stated that at the time of his diagnosis, the claimant had been having the pain on and off for quite some time and had recently fallen at home. According to Dr. Nagendra, when he treated the claimant on June 26, 2008, she was not working and he considered her to be totally disabled. Dr. Nagendra testified that he last saw the claimant on June 23, 2011. Dr. Nagendra further testified that the claimant had arthroscopic surgery and knee replacement surgery. He opined that the claimant's left knee surgeries were related to her work activities because the claimant was accumulating problems with her knee as a result of the wear and tear that she sustained to her knee as a result of the physical nature of her employment.
On cross-examination, Dr. Nagendra testified that three weeks prior to her first visit with him, the claimant fell at home. Dr. Nagendra further testified that the fall exacerbated the claimant's pre-existing knee condition, which Dr. Nagendra believes was due to the type of work the claimant performed. However, Dr. Nagendra conceded that at the time of the claimant's initial visit he was relating the claimant's knee condition to the fall; however, Dr. Nagendra explained that at the time he was focused on treating her knee condition, and he did not go into the details of the origin of her pain. Dr. Nagendra acknowledged that his opinion on causal relationship is not made with one hundred percent certainty; however, he stated that he attributes the claimant's left knee condition to the wear and tear that she sustained to her knee during the course of her employment. Dr. Nagendra acknowledged that when he saw the claimant in June 2008, he did not know how long she had been experiencing left knee pain; however, he stated that he only assists in chronic problems. Dr. Nagendra opined, within a reasonable degree of medical certainty, that the claimant's left knee condition is causally related to her work. Dr. Nagendra stated that he told the claimant that he believed her condition was work related around August 2010.
During a deposition on August 3, 2011, Dr. Rubinshteyn testified in accordance with his IME report. On cross-examination, Dr. Rubinshteyn stated that he was not aware of any accident to the claimant's left knee prior to the claimant's work-related incident on June 22, 2010.
In a notice of decision filed on September 16, 2011, the WCLJ found that the claimant's left knee condition was due to a fall at home, unrelated to her work activities, and disallowed the claimant's claim.
"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 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ). 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 ; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ).'[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 , affd 90 NY2d 914 ; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 )" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 ).
It is well settled that the Board may rely upon a medical opinion as to causation even if it is not absolute or made with medical certainty, so long as it demonstrates a reasonable probability as to the cause of an injury (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ).
"[T]he fact 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 , lv dismissed 96 NY2d 731  [internal quotation marks and citations omitted]).
"[C]ase law has established that an accidental, work-related impairment may be proven by medical evidence demonstrating that the repetitive acts required by the claimant's employment caused a debilitating injury. Once this showing has been made, a sudden injury is not required. Instead, the claimant's symptoms may accrue over a period of time so long as it can be established by medical evidence that a special condition peculiar to his or her workplace gave rise to the disability" (Parsons-Zieba v Cornell Univ., 2 AD3d 1044 [internal citations and quotation marks omitted]).
In the present case, claimant's treating physicians, Drs. Montalbano and Nagendra, and the carrier's consultant, Dr. Rubinshteyn, all opined that the claimant's knee injury was causally related to her work. Drs. Montalbano and Nagendram concluded that the claimant's job as an environmental service specialist was physically demanding and that during the course of her employment claimant sustained repetitive wear and tear to her knees, which exacerbated the claimant's pre-existing left knee condition. Dr. Rubinshteyn found that claimant's condition was causally related to her work-related accident on June 22, 2010.
Each of the doctors rendered their opinion of causal relationship with the knowledge that the claimant had a history of prior left knee problems and sufficient information regarding the claimant's occupational duties. While Dr. Montalbano acknowledged that life in general will cause degenerative meniscus tears and degenerative arthritis, Dr. Montalbano opined that the claimant was at a greater risk for progressive deterioration because of her job duties
While the record does establish that the claimant experienced issues with her left knee prior to the work-related incident on June 22, 2010, including a resolved torn meniscus tear from 1991 and a contusion from a fall in her home in 2008, "it is well settled that where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a pre-existing infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129  [internal citations omitted]. In this case, the credible medical evidence establishes that the claimant's employment, including the work-related incident on June 22, 2010, exacerbated the claimant's pre-existing left knee condition. In addition, with the exception of some intermittent lost time, the claimant was able to work from the time that she returned to work after her June 2008 accident up until the work-related incident on June 22, 2010, and the topic of knee replacement surgery was never discussed with the claimant until after her work-related injury on June 22, 2010.
In addition, while the fact that the claimant's doctors indicated on her disability forms that the claimant was not receiving or claiming workers' compensation at the time is relevant, it is not dispositive on the issue of causal relationship. The disability forms were completed shortly after the incident on June 22, 2010, and at the time that the disability forms were completed, it had not yet been determined that the claimant's left knee injury was causally related to her employment.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that repetitive activities related to claimant's employment, combined with the accident on June 22, 2010, exacerbated the claimant's pre-existing left knee condition.
ACCORDINGLY, the WCLJ decision filed on September 16, 2011, is REVERSED, and this claim is established for an accidental injury to claimant's left knee, with a June 22, 2010, date of accident. No further action is planned by the Board at this time.