The Full Board, at its meeting held on February 11, 2014, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 8, 2013.
The issue presented for Mandatory Full Board Review is whether the claim was properly amended to include a neck injury.
In a reserved decision filed on February 3, 2012, the Workers' Compensation Law Judge (WCLJ) amended the claim to include a neck injury.
In a Memorandum of Decision filed May 8, 2013, the Board Panel majority affirmed the WCLJ, finding that the established case was properly amended to include the claimant's neck injury.
The dissenting Board Panel member would have modified the WCLJ's decision to disallow the claim for a neck injury.
In its application for Mandatory Full Board Review filed on June 6, 2013, the carrier requests that the Board Panel decision be rescinded and modified to find that the claimant's cervical disc herniation at the C6/C7 level and the need for medical treatment (including surgery) are not related to the injury that occurred at work on April 1, 2008.
In a rebuttal filed with the Board on June 12, 2013, the attorneys for the claimant argue that the medical evidence shows that he complained of neck symptoms shortly after the work accident, and there is no evidence of any prior or subsequent injuries to the neck. While the claimant may have had pre-existing degenerative disc disease in his neck, Dr. Storrs agreed that the work injury could have caused the previously asymptomatic condition to become symptomatic.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On April 14, 2008, the employer filed a C-2 (Employer's Report of Work-Related Injury/Illness) to report that the claimant injured his right arm while working on April 1, 2008.
On June 3, 2008, Dr. Castellanos, the claimant's treating physician, initially examined the claimant for his work injury. A copy of narrative report of the examination on June 3, 2008, is in the record (ECF Doc ID #187541703, p. 55). On that date, the claimant reported that approximately "two months ago," he was lifting a patient with a co-worker and as they were setting the patient down, the entire weight of the patient ended up on the claimant's right shoulder. The claimant reported pain in his right shoulder over the right trapezius muscles, down into the deltoid and over the right shoulder. Dr. Castellanos diagnosed a right shoulder sprain.
On June 17, 2008, Dr. Castellanos examined the claimant again and noted that the claimant reported right shoulder sprain and neck muscle spasms (ECF Doc ID #187541703, p. 52). Dr. Castellanos noted that the claimant had muscles spasms in the right trapezius muscle.
In a report of an examination on June 26, 2008, Dr. Castellanos noted that "[t]here are still some muscle spasms in the right trapezius muscle" (ECF Doc ID #187541703, p. 50).
On July 25, 2008, Dr. Castellanos filed a C-4 report of an examination on July 10, 2008, and diagnosed cervicalgia, pain in the shoulder joint, and skin sensation disturbance, causally related to the injury at work on April 1, 2008. In the attached narrative report, Dr. Castellanos noted that the claimant came in "with right neck, right shoulder and right arm numbness and pain, with parethesia radiating down the right arm. It appears that he may have a problem with his cervical spine." Although work restrictions were recommended, the employer put the claimant on regular duties. Therefore, Dr. Castellanos took the claimant totally out of work. Dr. Castellanos explained that since he does not yet have an exact diagnosis for the neck, he does not want to risk him getting worse.
A cervical spine MRI was done on July 30, 2008, and showed cervical spondylosis at the C5/C6 and C6/C7 level, most significant at the C5/C6 level where there is minimal spinal cord compression (ECF Doc ID #187541703, p. 43).
Dr. Martin, the claimant's treating orthopedic surgeon, submitted a C-4 report of an initial examination on August 14, 2008, and in an attached narrative report, noted that the claimant reported that after the work injury on April 1, 2008, he developed pain in his right shoulder radiating to the neck and into the hand. Dr. Martin found that the claimant's symptoms suggest that he has right shoulder impingement syndrome with underlying rotator cuff tendinitis.
Dr. Martin submitted reports of subsequent treatment of the claimant but did not note that the claimant reported any left-sided symptoms until a narrative report of an examination on July 8, 2009, in which Dr. Martin noted that the claimant reported pain in his left shoulder radiating to his forearm over the past four months. He also reported weakness of the left hand but denied any significant neck pain. The claimant stated that he had not had any recent trauma or injury to the left upper extremity. However, the claimant did report that "[s]ince his right shoulder injury, [he] has been using his left upper extremity more and believes that this may have contributed to his symptoms."
In a report of an EMG done on July 29, 2009, Dr. Gomez noted that the findings of a bilateral arm study were abnormal (ECF Doc ID #187541703, p. 20). Specifically, there is evidence of left C8/T1 radiculopathy, and evidence of bilateral carpal tunnel syndrome.
In an administrative decision dated January 20, 2010, which became final on February 19, 2010, the claim was established for a right shoulder injury that resulted from an accident on April 1, 2008.
In a report dated February 22, 2010, Dr. Zupruk, the claimant's treating neurosurgeon, noted that the claimant's chief complaint involved pain, numbness, and weakness in the left upper extremity (ECF Doc ID #182299653). The claimant reported that he injured his right shoulder at work on April 1, 2008, and that the injury improved with treatment. Then, about a year ago, he noticed that his left index finger was difficult to control. He also noticed some atrophy on his hand, and some weakness of his grip and in his arm. Dr. Zupruk noted that a report of an MRI of the cervical spine done on February 15, 2010, "shows a large central disc herniation at C6/C7 eccentric towards the left, [which] impinges on the spinal cord and indents it centrally." Dr. Zupruk did not see any signal change within the cord, but noted that there is "impingement on the left neural foramen." Dr. Zupruk opined that the claimant has cervical myelopathy and radiculopathy due to the disc herniation at C6/C7.
On March 8, 2010, the claimant filed a C-3 (Employee Claim) and reported that he was injured at work on April 1, 2008. He alleged that he injured his neck, right arm/shoulder, and suffered a herniated disc, while he was working as a certified nursing assistant, and lifted a patient into a chair. The claimant explained that the patient was unable to stand and that while the claimant and a co-worker were lowering the patient into a chair, he got caught and pulled his shoulder.
In a decision filed on June 23, 2011, the WCLJ found prima facie medical evidence of a "cervical component to this injury" based on Dr. Zupruk's report of February 22, 2010, directed the carrier to submit a consultant's report on the issue of causation, and continued the case for the claimant's testimony on the issue of a causally related neck injury.
At the hearing held on August 2, 2011, the claimant testified that he worked as a nurse's aide, and on April 1, 2008, while moving a patient, he injured his right shoulder. The claimant did not initially believe that he injured any additional body parts. However, while undergoing physical therapy, within weeks of the compensable accident, he developed left hand weakness. The claimant believed that his left arm was fatigued due to overuse of his left arm caused by his right arm injury. He also developed neck pain. The claimant addressed the left hand problem with Dr. Castellanos. After undergoing an MRI, which revealed a herniated disc, the claimant was out of work from February 17, 2010, to May 19, 2010, due to his neck surgery. The claimant denied experiencing any accidental injuries subsequent to his April 1, 2008, compensable accident. While the claimant had lifted weights in the past, he denied that he injured his neck while doing so. After the injury, the first doctor that he went to was Dr. Castellanos. The claimant explained his right shoulder problem and also told the doctor that his neck was bothering him. The first time he noticed problems with his left side was about two months after the initial injury. He recalls this timeframe because he was going to physical therapy for his shoulder.
In a decision filed on August 5, 2011, the WCLJ directed the parties to obtain medical testimony of several doctors and continued the case for a reserved decision.
Dr. Zupruk testified on September 15, 2011, that when he first examined the claimant on February 22, 2010, the claimant reported that he injured his right shoulder at work in 2008. The claimant reported that "about a year [ago] he began to notice difficulty controlling his left index finger and that it was hard to move it against the middle finger" (Deposition Transcript, 9/15/11, p. 3). An MRI done on February 15, 2010, showed that the claimant had a large central disc herniation at C6/C7, more prominent on the left, which was compressing the spinal cord. Surgery was performed on March 2, 2010. Dr. Zupruk felt that it was possible that the neck injury was related to the compensable April 1, 2008, accident. He explained that "[t]he symptoms of weakness and muscle loss in the left arm began at some time after the work incident in 2008. These had to have been present for some time before I saw him because there was atrophy, and so there was some process going on well before I saw him. As to whether it occurred on the date of the event, I think it's difficult to tell." Dr. Zupruk further stated that although it is possible that the disc herniation occurred at the time of the April 2008 injury, he cannot prove that definitively. Dr. Zupruk was not provided a copy of the claimant's July 30, 2008, MRI, and indicated that having the prior MRI to compare with the 2010 MRI would be helpful. When read the 2008 MRI results, the doctor conceded that it appeared that the claimant's neck situation evolved between the time of the first and second diagnostic test. The claimant's neck surgery was initially paid through the claimant's personal health insurance.
Dr. Castellanos testified on September 22, 2011, that when he first treated the claimant relative to the compensable injury on June 3, 2008, the claimant complained of right shoulder pain, which had been present for two months. The claimant told the doctor that he injured his right shoulder while lifting a patient at work. As of June 17, 2008, the claimant continued to complain of right shoulder and right arm pain and also complained of muscle spasms in his right neck muscles and the trapezius muscles over his back. Dr. Castellanos made no diagnosis referable to the neck, but included a direction in his report for the claimant to apply moist heat to the right shoulder and neck areas, and noted that he might have to order a neck MRI. On June 26, 2008, the claimant complained of pain in his right shoulder and neck. On July 10, 2008, the claimant complained of pain in his right shoulder, neck, and right arm numbness, with pain radiating down the right arm, which indicated that the claimant might have a cervical spine problem. The claimant underwent a neck MRI in July 2008, but Dr. Castellanos did not have the results. On July 24, 2008, the claimant was referred to Dr. Martin, pending MRI. At the August 22, 2008, examination, the claimant reported that he was under Dr. Martin's treatment, and that she had diagnosed a right rotator cuff strain with cervical radiculopathy. Dr. Castellanos conceded that he never made a diagnosis referable to the claimant's neck. He referred the claimant to Dr. Martin to assess whether the claimant suffered from a causally related neck injury. Dr. Castellanos was unable to provide an opinion of causal relationship for a neck condition.
Dr. Setter, the claimant's treating orthopedic surgeon, testified on October 5, 2011, that he first treated the claimant on October 22, 2009, and the claimant's major complaints were right shoulder pain and left upper extremity weakness. The claimant reported that while at work on April 1, 2008, he injured his right shoulder and neck while moving a patient. Upon examination, the doctor found restricted range of motion, positive Spurling's sign (a compression test which can be indicative of radiculopathy or a compression of the nerve roots as they exit the neck), positive impingement signs of both shoulders (which is generally not indicative of a cervical spine problem), and good strength otherwise. Dr. Setter diagnosed the claimant with a causally related neck injury, based upon the claimant's report of the accident history and that he injured his neck during the accident, and the fact that the claimant had no neck problem prior to April 1, 2008. The claimant's July 30, 2008, MRI revealed cervical spondylosis at C5/C6 and C6/C7, and disc protrusions at C5/C6 and C6/C7, with spinal cord compression at C5/C6. Dr. Setter stated that the disc protrusion meant the same thing as a disc herniation. The claimant's MRI was read by one of the best neuroradiologists. Dr. Setter did not have copies of the reports from Dr. Castellanos or Dr. Zupruk, or the claimant's 2010 MRI results. Dr. Setter made no diagnosis referable to the claimant's neck, and admitted that he would defer to a neurosurgeon on the issue of causality. When advised that the claimant had no complaints of neck pain until more than one year post-accident, the doctor admitted that causal relationship "would be less likely." Dr. Setter would not rule out causality, because patients with neck pain often experience pain in the shoulders.
Dr. Storrs, the carrier's consulting neurosurgeon, testified on November 15, 2011, that he examined the claimant on October 12, 2011, when the claimant reported that he was injured on April 1, 2008, when his right arm became trapped while moving a patient. The records of the claimant's initial orthopedic consult with Dr. Martin indicate that he also alleged that he injured his neck. The early diagnosis was right shoulder impingement and right cervical radiculitis was also noted. However, there was no medical evidence of any significant neurologic examination to support a diagnosis of cervical radiculitis except this neck and shoulder pain history; there was no evidence to support any neurologic impairment referable to the neck. There were no initial complaints of radiculopathy related to the left side. The claimant treated for his right shoulder symptoms, and returned to work. Thereafter, the claimant developed weakness in his left upper extremity several months after the initial injury. The first date on which the claimant's treating physicians noted left sided radiculopathy or neck pain was by Dr. Martin on July 8, 2009. The limited information the doctor had relative to the claimant's EMG indicated that the claimant had C8/T1 radiculopathy on the left. The claimant's July 30, 2008, MRI showed cervical spondylosis at C5/C6 and C6/C7, but no evidence of significant disc herniation at C6/C7. The 2010 MRI showed a large disc herniation, with cord compression. Upon examination, Dr. Storrs found restricted range of neck motion, atrophy of the left hand, and a positive Tinel's sign. Based on the history he received, the records he reviewed, and the findings upon examination, Dr. Storrs found a diagnosis consistent with pre-existing degenerative disc disease at both C5/C6 and C6/C7, a relatively acute disc herniation at C6/C7, and motor dysfunction of the left that originated with the cord compression. The claimant's diagnosis of acute impingement syndrome of the right shoulder was related to the injury of April 1, 2008. However, while there were complaints of neck pain, there was nothing that suggested any neurologic impairment; the description of pain was more consistent with shoulder pain than radicular pain. The 2008 MRI showed only degenerative changes at C5/C6 and C6/C7 with no evidence of disc herniation.
Then over the next year, the claimant complained of neck and shoulder discomfort and severe weakness of the left hand. A repeat MRI showed a very significant disc herniation, and therefore, somewhere between the MRI scans of 2008 and 2010, there was a significant change in the disc at C6/C7. Dr. Storrs opined that the herniation at C6/C7 was not an acute injury related to the accident on April 1, 2008. He explained that the claimant's pre-existing degenerative disc disease may eventually have led to the herniation at C6/C7 and was not directly related to the traumatic injury of April 1, 2008. Similarly, the left hand motor dysfunction is not specifically causally related to the injury of April 1, 2008, based on the timeline set forth in the medical records. While Dr. Storrs agreed that if there had been an injury to the cervical spine that had been untreated since it initially occurred in April 2008, the initial condition could have deteriorated over time. However, Dr. Storrs believed that something else precipitated the claimant's disc herniation because he had a negative MRI scan in 2008, and then in 2010, after the claimant's left-sided complaints began, the MRI showed a disc herniation. Dr. Storrs agreed that if the claimant suffered from a pre-existing degenerative condition in his cervical spine, the compensable April 1, 2008, accident could have exacerbated that condition.
Dr. Martin testified on December 22, 2011, that she first treated the claimant on August 14, 2008. The claimant complained of right shoulder pain, radiating to his neck and right hand. The claimant first complained of left upper extremity pain and weakness at the July 8, 2009, examination. Dr. Martin was unable to ascertain the cause for the left sided symptoms. It could be related to his injury but there is no way to know for sure. The claimant's MRI revealed degenerative changes at C5/C6 and C6/C7. She could not ascertain how old those changes were. She diagnosed the claimant with a causally related right shoulder injury. She made no diagnosis referable to the claimant's neck.
The parties submitted written summations and in a reserved decision filed on February 3, 2012, the WCLJ amended the claim to include a causally related neck injury. The WCLJ found that "the weight of credible medical evidence supports expansion of this claim to include claimant's cervical condition [because] the mechanism of injury is consistent with a neck injury, and from the beginning of his treatment with Dr. Castellanos, claimant reported neck symptoms and cervical pathology was suspected." The WCLJ further noted that "[t]he July 2008 MRI contains evidence of disc herniation, and there is no evidence of any intervening accident or trauma prior to the February 2010 MRI."
"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 ). "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  [internal quotation marks and citations omitted]).
Here, the claimant testified that he developed left sided problems and neck pain within two months after the initial injury date of April 1, 2008. The claimant's testimony is supported by Dr. Castellanos' medical reports which reference a neck injury only a few months after the compensable April 1, 2008, accident (on June 17, 2008). Dr. Zupruk, Dr. Castellanos, and Dr. Martin never made a diagnosis of a neck injury, and never found a causally related neck condition. However, Dr. Setter testified that the claimant reported that while at work on April 1, 2008, he injured his right shoulder and neck while moving a patient. Dr. Setter diagnosed the claimant with a causally related neck injury based upon the claimant's report of the accident history and that he injured his neck during the accident, and the fact that the claimant had no neck problem prior to April 1, 2008. While Dr. Storrs opined that the herniation at C6/C7 was not an acute injury related to the accident on April 1, 2008, the Full Board finds that Dr. Storrs' opinion was less persuasive than that of Dr. Setter because Dr. Storrs incorrectly indicated that the first date that the claimant's treating physicians had noted neck pain was on July 8, 2009, by Dr. Martin.
Therefore, the Full Board finds that based on Dr. Setter's credible opinion of causal relationship, the claim was properly amended to include a neck injury.
ACCORDINGLY, the WCLJ reserved decision filed on February 3, 2012, is AFFIRMED. No further action is planned by the Board at this time.