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Case # G0148029
Date of Accident: 12/18/2009
District Office: Syracuse
Employer: Santago Developement
Carrier: Technology Insurance Co. Inc.
Carrier ID No.: W206759
Carrier Case No.: 4340601
Date of Filing of Decision: 11/07/2013
Claimant's Attorney: Oot & Stratton
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

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 24, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant's need for rotator cuff repair surgery is causally related to the claimant's December 18, 2009, work-related accident.

In a reserved decision filed on September 20, 2011, the Workers' Compensation Law Judge (WCLJ) found that the claimant's need for rotator cuff repair surgery is causally related to the claimant's work-related accident.

The Board Panel majority affirmed.

The dissenting Board Panel member would find that the claimant sustained a new, unrelated accident in December 2010, and that the claimant's need for rotator cuff surgery is not causally related to the claimant's work accident on December 18, 2009.

On February 22, 2013, the carrier filed an application for Mandatory Full Board Review, arguing that the weight of the credible medical evidence demonstrates that the claimant sustained a new injury and that the need for surgery to repair a left rotator cuff tear is unrelated to the claimant's December 18, 2009, work-related accident.

On March 21, 2013, the claimant filed a rebuttal, arguing that the record supports the conclusion reached by the WCLJ and the Board Panel Majority.

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

FACTS

On December 18, 2009, claimant, an auto mechanic, was injured when he slipped while repairing a truck. This case has been established for an injury to the claimant's left shoulder.

In a medical narrative dated January 5, 2010, Dr. Greenky diagnosed the claimant with a dislocated left shoulder and instructed the claimant that he could return to work in 10 days. In a medical narrative dated June 8, 2010, Dr. Greenky noted that the claimant presented with complaints of left shoulder pain, which was sharp at times and worsened with overhead movement. Dr. Greenky noted that the claimant indicated that his left shoulder would occasionally "pop." According to Dr. Greenky, the claimant was working as a diesel mechanic; was not taking any pain medications; and denied any numbness or tingling in the left upper extremity. Dr. Greenky prescribed therapy to work on rotator cuff strengthening exercises.

In a medical narrative dated January 6, 2011, Dr. Greenky stated that the claimant aggravated his work-related injury when "he fell on a snowy driveway after 18 inches of snow fell near his house..." Dr. Greenky indicated that prior to this aggravation the claimant was "doing fairly well on a home-based exercise program for impingement rotator cuff exercise." Dr. Greenky diagnosed the claimant with aggravation of impingement, left shoulder, possible rotator cuff tear," and prescribed a home-based exercise program in lieu of formal physical therapy. Dr. Greenky did not take the claimant out of work and did not prescribe any formal work restrictions.

In a medical narrative dated April 7, 2011, Dr. Greenky diagnosed the claimant with a rotator cuff tear and labral tear based on the results of an MRI scan. Dr. Greenky opined that the claimant's work-related accident on December 18, 2009, was the competent medical cause of the claimant's injury. Dr. Greenky recommended arthroscopic surgery and referred the claimant to Dr. Smart.

In a medical narrative dated April 11, 2011, Dr. Smart opined that the claimant's work-related accident on December 18, 2009, was the competent medical cause of the claimant's injury. Dr. Smart diagnosed the claimant with a left shoulder rotator cuff tear and recommended arthroscopic rotator cuff repair, most likely with labral debridement.

During a hearing on May 19, 2011, the claimant testified that he dislocated his shoulder in a work-related accident on December 18, 2009, and that he went to the hospital to have it put back into place. The claimant further testified that after the accident he missed two weeks from work, but then returned to his normal position with limitations. According to the claimant, he was still under those limitations as of December 2010. The claimant testified that in December 2010, "It was a snowy evening. I was walking across my driveway; I slipped, lost my footing, threw my arms up, I turned and I had pain...severe pain in my left shoulder" (Hearing Minutes 5/19/2011, pg. 5). The claimant stated that he did not fall or hit the ground and that he did not tell Dr. Greenky that he fell. Rather, he told Dr. Greenky that he slipped, lost his footing and threw his arms up. According to the claimant, after the incident in December 2010, he experienced an onset or reoccurrence of the same type of pain that he experienced on December 18, 2009. The claimant testified that he did not lose any time from work following the incident in December 2010, and that his work restrictions remained the same.

On cross-examination, the claimant acknowledged that he had not received treatment for his left shoulder between June 8, 2010, and January 6, 2011. The claimant conceded that he contacted the carrier's claims adjuster by telephone to inform him of the incident; however, the claimant stated that he told the claims adjuster that he had slipped in his driveway at home, but did not tell the claims adjuster that he had fallen. According to the claimant, surgery was discussed after the original injury in December of 2009, but they weren't going to proceed. The claimant acknowledged that the only time surgery has been recommended was after the December 2010 event. The claimant conceded that he never provided Dr. Smart with a history of the incident that occurred in December 2010. The claimant testified that when surgery was discussed after his December 18, 2009, accident, it was determined that if the claimant experienced recurrent pain in the shoulder, Dr. Greenky would recommend that the claimant proceed with surgery.

During the hearing on May 19, 2011, the carrier's claims adjuster testified that he is the adjuster for the claimant's open workers' compensation case. The claims adjuster further testified that on January 5, 2011, the claimant contacted him to inform him that he had slipped and fallen at his home, and that as a result, he had dislocated the same shoulder that he had dislocated in his work-related accident. The claims adjuster stated that the claimant's testimony that he slipped and tried to catch his balance without falling is inconsistent with the history that the claimant provided to him on January 5, 2011.

On cross-examination, the claims adjuster stated that he did not record the telephone conversation between himself and the claimant, and that he was testifying based on a note that he entered into the claims system on January 7, 2011. The claims adjuster conceded that he made the note in the claims system from memory.

In a Practitioner's Report of Independent Medical Examination (IME-4) dated June 15, 2011, the carrier's orthopedic consultant, Dr. Goodman, noted that the claimant sustained a complete anterior dislocation of the left shoulder in a work-related accident on December 18, 2009, and that the claimant re-injured his left shoulder when he fell on the snow at home. After reviewing the claimant's medical records and performing a physical examination of the claimant, Dr. Goodman diagnosed the claimant with a re-injury of the left shoulder, most likely resulting in an acute rotator cuff tear. Dr. Goodman opined that the claimant's prognosis is fair without surgery and good with surgery. Dr. Goodman concluded that the claimant's condition is "partly related to the original injury of 12/18/09 involving an anterior shoulder dislocation and partly due to a full thickness rotator cuff tear most likely sustained in the fall at home in January 2011. Both conditions are contributing to the claimant's overall condition, symptomatology and need for surgery." Dr. Goodman stated that he would apportion 50% to the claimant's work injury and 50% to the re-injury of the claimant's left shoulder involving the rotator cuff tear in January 2011.

During a deposition on July 11, 2011, Dr. Smart testified in accordance with his medical reports. Dr. Smart acknowledged that when he saw the claimant on April 11, 2011, the claimant did not provide a history of a slip, slip and fall or any new incident occurring in December 2010. Dr. Smart testified that he became aware of the December 2010 incident when he reviewed Dr. Greenky's medical report dated January 6, 2011, which indicated that the claimant slipped and fell in his driveway. According to Dr. Smart, it is very unlikely that the claimant would have torn his rotator cuff by throwing his arms into the air to catch his balance; however, he acknowledged that this could have aggravated the shoulder, assuming that there was already a rotator cuff tear. Dr. Smart testified that based on the MRI, specifically the size of the tear and the condition of the tissue, the tear fit more with the claimant being injured in December 2009 than December 2010. However, Dr. Smart admitted that it is difficult to discern the date of the tear for sure. When asked about his opinion on causal relationship, Dr. Smart stated, "[M]y opinion is that when [the claimant] dislocated his shoulder on the job December 2009, he tore his rotator cuff for his labrum, and that is ultimately what needs to be fixed" (Smart Deposition 7/11/11, pg. 8).

On cross-examination, Dr. Smart acknowledged that prior to the morning of his deposition, he was not aware that the claimant did not seek any treatment for his left shoulder between June 8, 2010, and January 6, 2011. Dr. Smart agreed that it was the December 2010 event that precipitated the need for the MRI that led to the discovery of the claimant's rotator cuff tear, and also led Dr. Smart to recommend surgery. Dr. Smart testified that it is difficult to tell whether the claimant's rotator cuff tear and need for surgery is related to the aggravation or new event that occurred in December 2010; however, Dr. Smart stated that he believes the claimant had an underlying problem that pre-existed due to his work injury and that the event in December 2010 aggravated the underlying problem. Specifically, Dr. Smart opined that on December 18, 2009, the claimant tore his labrum and most likely tore his rotator cuff, but then was doing fine. Dr. Smart conceded that he cannot say within a degree of medical certainty that the claimant's rotator cuff tear occurred by way of the December 2009 work injury. Dr. Smart stated that if the claimant "fell and slipped on the driveway, that would be a good way to tear your rotator cuff too" (id. at 17).

Dr. Greenky was deposed on July 26, 2011. Dr. Greenky testified that the claimant presented to his office on January 5, 2011, after a near fall in a snowy driveway near his house, which caused the claimant to fling his arm up in the air to rebalance himself. Dr. Greenky further testified that although the claimant did not dislocate his shoulder as a result of the incident, the claimant was having increasing trouble doing overhead activity and raising the arm up. According to Dr. Greenky, he requested an MRI, which revealed that "[the claimant] had a consequence of a dislocated shoulder, a torn anterior capsule and a rotator cuff tear" (Greenky Deposition 7/26/11, pg. 8). Dr. Greenky testified that sometimes the consequence of a shoulder dislocation is injury to the rotator cuff or the beginnings of a tear of the rotator cuff. Dr. Greenky further testified that he believes, with a reasonable degree of medical certainty, that the claimant's rotator cuff tear is related to the claimant's work-related accident on December 18, 2009. Dr. Greenky stated that "it's likely that some tearing of his rotator cuff occurred at the time and progressively worsened over the interval time and worsened in a more dramatic and sudden way with the driveway incident" (id. at 10).

On cross-examination, Dr. Greenky acknowledged that the testimony that he provided on direct exam was slightly different than the history provided in his medical report dated January 6, 2011. Specifically, Dr. Greenky testified on direct exam that the claimant had a "near fall"; however, his medical report states that the claimant "fell in a snowy driveway." Dr. Greenky admitted that he did not have an independent recollection of what the claimant told him, and stated that he would rely on his medical report for an accurate history. Dr. Greenky conceded that the rotator cuff tear was not documented until the MRI scan; however, he stated that he did not order an MRI scan prior to that time because it didn't seem to be a pressing issue. Dr. Greenky agreed that the claimant's need for surgery did not arise until after the fall in December 2010. Dr. Greenky admitted that he could not say with a reasonable degree of medical certainty that the claimant had a rotator cuff tear that wasn't very big prior to December 2010; nor could he refute that the claimant did not have a rotator cuff tear prior to December 2010, and that the claimant's rotator cuff tear resulted entirely from the fall in the driveway. Dr. Greenky testified that it was irrelevant whether the claimant fell or almost fell in the driveway, because either way the claimant could have injured his rotator cuff in the manner shown on the MRI.

During a deposition on July 28, 2011, Dr. Goodman testified in accordance with his IME report. According to Dr. Goodman, he examined the claimant on June 13, 2011, and the claimant confirmed that he had fallen outside of his home in December 2010. However, Dr. Goodman stated that his conclusions and opinions are the same regardless of if the claimant actually fell or merely slipped and lost his balance. Specifically, Dr. Goodman stated that the December 2010 incident resulted in an acute injury that caused significantly different and worse symptoms than those which the claimant experienced prior to the December 2010 incident. Dr. Goodman testified that he diagnosed the claimant with "the dislocation of the left shoulder, which was reduced on the day of the injury, but with some persistent symptoms consistent with subluxations, that is partial dislocations, and instability...re-injury of the left shoulder in January 2011, most likely resulting in acute and significant rotator cuff tear" (Goodman Deposition 7/28/11, pg. 9). According to Dr. Goodman, he determined that the claimant's rotator cuff tear occurred as a result of the incident that occurred in the winter of 2010 or January 2011, because the claimant's symptoms and injury were consistent with an acute injury at that time. Specifically, at the time, the claimant reportedly felt acute pain and a pop. Following that he had a significant increase in pain and inability to raise his arm from the side, especially against any resistance, indicating weakness. Dr. Goodman testified that there was no indication that the claimant had a rotator cuff tear prior to the accident in the winter of 2010. Dr. Goodman stated that he would apportion 50% to the claimant's work injury and 50% to the re-injury of the claimant's left shoulder involving the rotator cuff tear in January 2011. However, Dr. Goodman clarified that he would apportion the claimant's condition 50% to each injury, but would assign the claimant's need for rotator cuff surgery exclusively to the December 2010 incident. According to Dr. Goodman:

It was clear from the records and from interviewing the claimant that even before the injury, the second injury in 2010, winter, he continued to have discomfort, instability and a sense of awkwardness using the arm and shoulder, which were symptoms consistent with ongoing instability secondary to the anterior dislocation of his shoulder and those symptoms never resolved completely, and I believe were serious enough to justify surgical attention. When he had the second injury at home and sustained the rotator cuff injury at that time presumably, his symptoms became somewhat different and significantly worse. The full thickness of the rotator cuff tear documented on the MRI, in conjunction with the claimant's symptoms, justified surgery as well. The two conditions are completely different. They involved different anatomy, different pathology and different surgeries, but both I believe are necessary and should be done at the same time. (Id. at 12).

Dr. Goodman stated that his conclusions were made with a reasonable degree of medical certainty.

In a reserved decision filed on September 20, 2011, the WCLJ found that the claimant's need for rotator cuff repair surgery is causally related to the claimant's work-related accident.

LEGAL ANALYSIS

"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 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). 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 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]).'[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 [1997], affd 90 NY2d 914 [1997]; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 [2005])" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]).

"[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. While the Board may rely upon a medical opinion as to causation even if it is not absolute or made with medical certainty, the Board may not fashion a medical opinion of its own, nor may it rely upon a medical opinion that is purely speculative rather than demonstrating a reasonable probability as to the cause of an injury" (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009] [internal quotation marks and citations omitted]).

In the present case, contrary to the claimant's testimony that in December 2010, he slipped but did not fall, Dr. Greenky's medical report dated January 6, 2011, documents that the claimant "fell on a snowy driveway after 18 inches of snow fell near his house." Dr. Greenky testified that he would rely on his medical report for an accurate history. Dr. Goodman also testified that during his examination of the claimant on June 13, 2011, the claimant confirmed that he had "fallen" outside of his home in December 2010. In addition, the claim's adjuster responsible for the claimant's open worker's compensation case testified that on January 5, 2011, the claimant contacted him to inform him that he had slipped and fallen at his home, and that as a result, he had dislocated the same shoulder that he had dislocated in his work-related accident. The testimony and the supporting documentation provided by Dr. Greenky, Dr. Goodman and the claims adjuster was credible and indicates that the claimant did slip and fall in his driveway in December 2010.

Accordingly, the Board Panel's decision to adopt the WCLJ's finding that the claimant did not actually fall when he slipped in his driveway in December 2010, is not supported by a preponderance of the evidence. However, Dr. Greenky testified that it was irrelevant whether the claimant fell or almost fell in the driveway, because either way the claimant could have injured his rotator cuff in the manner shown on the MRI, and Dr. Goodman stated that his conclusions and opinions are the same regardless of if the claimant actually fell or merely slipped and lost his balance.

Dr. Greenky credibly testified that the MRI taken of the claimant's left shoulder after the claimant slipped and fell in his driveway in December 2010, revealed that the claimant "had a consequence of a dislocated shoulder, a torn anterior capsule and a rotator cuff tear," and that sometimes the consequence of a shoulder dislocation is injury to the rotator cuff or the beginnings of a tear of the rotator cuff. (Greenky Deposition 7/26/11, pg. 8). Dr. Greenky further testified that he believes, with a reasonable degree of medical certainty, that the claimant's rotator cuff tear is related to the claimant's work-related accident on December 18, 2009. Dr. Greenky stated that "it's likely that some tearing of [the claimant's] rotator cuff occurred at the time and progressively worsened over the interval time and worsened in a more dramatic and sudden way with the driveway incident" (id. at 10).

In addition, Dr. Smart testified that based on the MRI, specifically the size of the tear and the condition of the tissue, the tear was more consistent with the claimant being injured in December 2009 than December 2010. Dr. Smart stated that he believes the claimant had an underlying problem that pre-existed due to his work injury and that the event in December 2010 aggravated the underlying problem.

While the medical records establish that the claimant did not seek treatment for his left shoulder from June 8, 2010, through January 5, 2011, Dr. Goodman testified that the claimant continued to have discomfort, instability and a sense of awkwardness using the arm and shoulder, which were symptoms consistent with ongoing instability secondary to the anterior dislocation of his shoulder and that those symptoms never resolved completely prior to the claimant's second shoulder injury in December of 2010.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant's need for rotator cuff surgery is causally related to the claimant's work-related accident on December 18, 2009.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on September 20, 2011, is MODIFIED to find that the claimant did slip and fall in his driveway in December 2010. The remainder of the decision, which found that the claimant's need for rotator cuff repair surgery is causally related to the claimant's work-related accident, is affirmed. No further action is planned by the Board at this time.