The Full Board at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision (MOD) filed March 12, 2013.
The issue presented for Mandatory Full Board Review is whether the claimant's left knee surgery should be authorized.
The Workers' Compensation Law Judge (WCLJ) authorized the claimant's left knee arthroscopic medial meniscectomy and chrondoplasty surgery.
The Board Panel majority affirmed the WCLJ decision, crediting the testimony of the claimant and the opinion of claimant's treating physician.
The dissenting Board Panel member found that the claimant sustained two post-accident falls and sustained a new injury to her left knee as a result of one or both of these incidents. The dissent found that the need for surgery was not causally to claimant's work-related injury.
The carrier filed an application for Mandatory Full Board Review on April 10, 2013.
The claimant filed a rebuttal on May 2, 2013.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The instant claim was initially established for injuries to the claimant's back and left knee that occurred as a result of a slip and fall at work on February 13, 2008. The claim was subsequently amended to include the right knee and the neck. Following the close of the record, the case was further amended to include consequential depression.
In an IME-4 (Practitioner's Report of Independent Medical Examination) filed with the Board on January 28, 2011, for a January 24, 2011, independent medical examination, Dr. Buckner opined that no causally related pathology exists with respect to the claimant's complaints of left shoulder and bilateral knee pain, her musculoskeletal examination was within normal limits, her subjective complaints were not supported by objective findings, she has no disability, can work without causally related restrictions and no further treatment is required.
In an addendum dated February 2, 2011, and filed with the Board on February 4, 2011, Dr. Buckner opined that the claimant's right knee was "in a small part" causally related based on the claimant's unverified statements, but that he would need to review "contemporaneous medical records" in order to provide an informed opinion.
In an EC-4NARR (Doctor's Narrative Report) dated April 11, 2011, and filed with the Board on April 15, 2011, Dr. Memoli opined that the claimant was in need of left knee surgery, and in particular, "arthroscopic medial meniscectomy and chrondoplasty patella femoral joint." Dr. Memoli based his conclusion on the claimant's persistent complaints and positive physical findings with increased pain, swelling, buckling and cracking of the left knee, and medial joint tenderness and sub patella crepitus detected on examination.
Dr. Memoli filed a C-4AUTH (Attending Doctor's Request for Authorization and Carrier's Response) with the Board on April 18, 2011, requesting authorization for the claimant's left knee surgery.
The carrier denied the request for authorization of the claimant's left knee surgery by C-4AUTH (Carrier's Response to Authorization Request) filed on April 21, 2011.
At a hearing held on September 6, 2011, the claimant testified that she attended an IME with Dr. Buckner and informed him that she injured only her lip in a fall while out of the country in London following her February 2008 work-related injury. The claimant was taken to the emergency room and received stitches in her lip as a result of the fall, but did not subsequently miss time from work as a result of this injury. The claimant denied informing Dr. Buckner that she sustained another injury in a fall at her home. On cross-examination, the claimant testified that she had two cataract surgeries on her left eye, one in May 2010 and the other in October 2010. The claimant reiterated that she did not inform Dr. Buckner that she fell at home. The claimant reported that she was involved in a motor vehicle accident, but was unsure as to whether it occurred after her date of accident or if she injured her knees. Claimant has seen Dr. Hall, a chiropractor and Dr. Memoli for her causally related knee issues. At the conclusion of the hearing, the WCLJ directed that the case be continued to allow the claimant to produce evidence with respect to the date of her motor vehicle accident.
In a decision filed on December 16, 2011, for a hearing held on December 13, 2011, the WCLJ directed the parties to submit deposition transcripts of Drs. Memoli and Buckner, and memoranda of law on the issue of authorization for left knee surgery, by February 13, 2012, for further adjudication.
At a deposition held on February 2, 2012, Dr. Buckner testified that he specializes in orthopedic surgery, he evaluated the claimant at the behest of the carrier on January 24, 2011, filed a report with the Board on the same date, and issued an addendum to the report on February 2, 2011. Dr. Buckner indicated that his testimony would be in substantial accordance with both reports. On cross-examination, Dr. Buckner testified that the claimant provided him with a history of injuring her back and both knees following a slip and fall at work on August 13, 2008, that she treated with Drs. Hall and Memoli and received physical therapy. Dr. Memoli recommended knee surgery. Upon examination, the claimant complained of left shoulder pain, leg pain, bilateral knee pain and numbness, and difficulty walking and moving her arms and legs. Aside from some effusions in her knees, the claimant had no evidence of muscle spasm or weakness, full range of motion in her knees, no crepitus at the patellae and no muscle spasm in her spine. Dr. Buckner diagnosed the claimant with bruised knees with current mild effusion, subsequent knee injuries with mild effusions, hypertensive cardiovascular disease, thyroid disease and post-cataract surgeries. Dr. Buckner indicates that the claimant informed him that she fell several time at home and while visiting another country, prior to having cataract surgery. There was no need for further treatment with respect to the claimant's knee. Dr. Buckner could not express an opinion as to whether the claimant's right knee injury was causally related based on a lack of contemporaneous medical evidence. On re-direct, Dr. Buckner indicated that he had no independent recollection of being informed by the claimant that she injured her knee while in London, that no medical documentation was provided to him with respect to the claimant's knee and he was unable to comment with respect to causal relationship of the claimant's right knee. The claimant did not require right knee chrondoplasty as that procedure would not be effective for remedying the claimant's degenerative or inflammatory arthritis. While an MRI would be helpful to look at, it would not change his opinion with respect to the need for right knee chrondoplasty, and a knee replacement surgery would be more effective for treating arthritis.
Dr. Buckner's February 2, 2012, deposition transcript was filed with the Board on February 14, 2012. A deposition transcript of Dr. Memoli's testimony was not filed with the Board.
In a reserved decision filed on April 6, 2012, the WCLJ authorized the claimant's left knee arthroscopic medial meniscectomy and chrondoplasty surgery. The WCLJ determined that the carrier forfeited cross-examination of the claimant's Dr. Memoli based on the absence of his deposition transcript in the file. The WCLJ, however, credited the medical reports of Dr. Memoli over the testimony and documentary evidence submitted by the carrier's consultant Dr. Buckner. The WCLJ also relied on the claimant's persistent left knee pain, swelling, buckling, cracking and the MRI findings indicating a torn medical meniscus.
"'It is well settled that the Board is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference, particularly with respect to issues of causation' (Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823 ; see Matter of Joyce v United Food & Commercial Workers Local 342-50, 307 AD2d 552 )" (Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 ).
The Full Board finds, upon review of the evidence of record, that the claimant's left knee surgery is causally related to her established work-related accident. The medical reports of Dr. Memoli unequivocally indicate that the proposed left knee surgery was causally related to the claimant's February 13, 2008, work-related injury. The claimant credibly testified that after the date of accident, she did not slip and fall at home and sustained only a lip injury following a slip and fall in London. That the carrier's consultant Dr. Buckner noted in his IME report that the claimant informed him that she injured her left knee in a fall at home and in London after her date of accident, but prior to her cataract surgery, does not require a contrary finding. This is especially true considering his admission upon re-direct that he had no independent recollection of being informed by the claimant of a fall in London.
Therefore, the Full Board finds that the claimant's left knee surgery is authorized.
ACCORDINGLY, the WCLJ reserved decision filed on April 6, 2012, is AFFIRMED. No further action is planned by the Board at this time.