The Full Board, at its meeting on October 22, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on January 15, 2013.
The issue presented for Mandatory Full Board Review is whether the claimant's knee and back conditions are subject to apportionment.
In a notice of decision filed on September 14, 2011, the Workers' Compensation Law Judge (WCLJ) found that apportionment does not apply as a matter of law to the claimant's knee and back conditions.
The Board Panel majority found that the WCLJ properly found no legal basis for apportionment in this matter.
The dissenting Board Panel member agreed that there should be no apportionment to the claimant's prior osteoarthritis; however, the dissenting Board Panel member found that the record supports the conclusion that there should be apportionment to the claimant's obesity and her subsequent activities. The dissenting Board Panel member further found that there is no legal bar to apportionment between a work-related injury and a subsequent non-work-related injury that aggravates the work-related injury and increases the injured worker's overall disability
On February 4, 2013, the carrier filed an application for Mandatory Full Board Review, arguing that the medical evidence supports a finding that the claimant's disability and her need for bilateral knee replacement surgery should be apportioned to her activities of daily living and obesity subsequent to her work injury on March 18, 2004.
On March 6, 2013, the claimant filed a rebuttal, arguing that apportionment is not appropriate in this case as the claimant did not sustain a separate accident or incident, but, rather, continued to work and continued to live her life. The claimant further argued that the fact that an injured person may suffer a greater disability as she continues merely to live does not make the claimant's disability subject to apportionment.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On March 18, 2004, claimant, a certified nurse's aide (CNA), fell down the stairs when transporting a patient from the hospital to church for a memorial service. This case has been established for injury to the left knee and consequential back and right knee injuries.
In a Practitioner's Report of Independent Medical Examination (IME-4) dated December 17, 2009, the carrier's orthopedic consultant, Dr. Sadrieh, noted that the claimant was employed as a CNA for approximately 35 years; that the claimant was injured in the course of her employment on March 18, 2004, when she was transporting a patient from the hospital to church for a memorial service; following initial treatment for her left knee, the claimant did fairly well and was able to continue to work; the claimant did not seek any further medical treatment until 2007, but the claimant reported that she was having discomfort in her knee during that period of time; the claimant reported an onset of back and right knee pain in December 2008; and the claimant stopped working on December 28, 2008. According to Dr. Sadrieh, the claimant denied having any issues with her knees prior to 2004 and denied any other work-related injuries. Dr. Sadrieh performed a physical examination of the claimant and diagnosed her with bilateral osteoarthritis of the knee; degenerative disk disease with disk bulges and disk protrusion at multiple levels of the lumbar spine, in particular at L4-L5 and at L5-S1; and a contusion of the left knee. With respect to causal relationship, Dr. Sadrieh opined that the contusion of the claimant's left knee was caused by the work-related accident on March 18, 2004; the incident on March 18, 2004, aggravated the claimant's pre-existing osteoarthritis; the claimant's degenerative disk disease of the lumbar spine is secondary to her moderate obesity and degenerative process; the claimant's gait abnormality, secondary to osteoarthritis of the knees, also contributes to the claimant's degenerative disk disease.
During a deposition on January 8, 2010, claimant's treating physician, Dr. Meeks, stated that "[the claimant] has lost weight, but she's still overweight" (Meeks Deposition 1/8/10, pg. 6).
In a report dated March 24, 2010, Dr. Sadrieh amended his IME-4 report dated December 17, 2009, to provide an opinion on apportionment. Dr. Sadrieh stated that he would apportion two-thirds of the claimant's left knee condition to her pre-existing osteoarthritis, and one-third to the incident on March 18, 2004, and the contusion of the left knee. Dr. Sadrieh further stated that he would apportion 10% of the claimant's lower back problem to her abnormal gait. Dr. Sadrieh opined that the claimant's right knee condition is not causally related to the work-related accident on March 18, 2004.
During a deposition on June 29, 2010, Dr. Sadrieh testified in accordance with his IME reports. Dr. Sadrieh testified that the claimant had some generalized osteoarthritis which partially pre-dated her compensable accident, that the claimant worked as a CNA for 35 years and that she was quite obese. Dr. Sadrieh opined that all of these conditions played a role in the claimant's knee and back conditions. Dr. Sadrieh further opined that two-thirds of the claimant's left knee disability is related to her pre-existing osteoarthritis caused by unrelated factors, and one-third of her left knee disability is related to the compensable accident; that the claimant's right knee condition is not related to the compensable accident; and that 10% of the claimant's back condition is related to her altered gait caused by the compensable accident, and that 90% is unrelated.
On cross-examination, Dr. Sadrieh acknowledged that there is nothing in the claimant's medical history to suggest that the claimant's knee and back conditions were disabling prior to her work-related accident on March 18, 2004.
During a deposition on August 25, 2010, Dr. Meeks testified that he first treated the claimant on July 27, 2007, and that on that date the claimant presented with left knee pain following a fall at work on March 19, 2004. The doctor further testified that he has continued to treat the claimant. Dr. Meeks opined that the claimant's causally related left knee injury exacerbated pre-existing conditions in her right knee and lower back. Dr. Meeks further opined that the claimant's right knee and lower back conditions were brought on by the claimant's fall as the conditions were asymptomatic prior to the compensable accident.
On cross-examination, Dr. Meeks acknowledged that the claimant was not treated until 2007; however, Dr. Meeks testified that the claimant reported that her knee discomfort waxed and waned following the compensable accident on March 18, 2004. Dr. Meeks further testified that diagnostic studies were undertaken, which revealed osteoarthritis in both knees. According to Dr. Meeks, this osteoarthritis was not symptomatic prior to the compensable accident. Dr. Meeks testified that although the trauma that the claimant suffered in the compensable accident did not cause her osteoarthritis, it caused the condition to become symptomatic. Dr. Meeks recommended that the claimant proceed with a left knee replacement. Dr. Meeks opined that 50% of the claimant's symptomatology and need for treatment was causally related to the post-traumatic arthritis suffered as a result of the compensable accident, while 50% is related to arthritis caused by her weight and working as a CNA for so many years.
In a notice of decision filed on September 14, 2011, the WCLJ found that apportionment does not apply as a matter of law to the claimant's knee and back conditions.
There is no legal bar to apportionment between a work-related injury and a subsequent non-work-related injury that aggravates the work-related injury and increases the injured worker's overall disability (see Matter of Cool v TP Brake & Muffler, Inc., 305 AD2d 886 ). In Matter of Cool, when a mechanic injured his back at work the day before participating in a demolition derby, and when medical evidence credibly attributed 40% of the claimant's disability to the work-related accident and 60% to activities at the demolition derby, the Appellate Division declined to disturb the Board's decision to apportion 60% of the disability to the claimant's demolition derby activities (id.).
Here, the claimant did not suffer a subsequent non-work-related injury. There is no evidence that the claimant's overall disability was worsened by an injury which resulted from a discrete non-work-related incident or activity. The condition of being obese and the continuation of daily living do not constitute discrete non-work-related incidents, nor do they represent "subsequent non-work-related injuries." In addition, the record suggests that the claimant was obese prior to March 18, 2004, and that although she has lost weight, she remained obese subsequent to March 18, 2004. The record also reflects that the claimant engaged in activities of daily living, including working as a CNA, prior to March 18, 2004, and that the claimant continued to engage in activities of daily living after March 18, 2004.
Therefore, the Full Board finds that claimant's knee and back conditions are not subject to apportionment.
ACCORDINGLY, the WCLJ decision filed on September 14, 2011, is AFFIRMED. No further action is planned by the Board at this time.