Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # G0214994
Date of Accident: 02/10/2010
District Office: Albany
Employer: Summit Shock Incarceration
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63995690-092
Date of Filing of Decision: 02/10/2017
Claimant's Attorney: Dennis Kenny
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 15, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the case should be amended to include a consequential right shoulder injury.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim for a consequentially related right shoulder injury.

The Board Panel majority reversed the WCLJ's decision, and found that the right shoulder condition was consequentially related to the left shoulder injury.

The dissenting Board Panel member would affirm the WCLJ's disallowance of the claim for the consequential left shoulder condition.

In its application for Mandatory Full Board Review, the carrier asserts that Dr. Lassiter's medical opinion on consequential relationship is speculative and not credible and that the WCLJ's decision should be affirmed.

In rebuttal, the claimant asserts that Dr. Lassiter credibly found that his right shoulder injury resulted from overuse of the right shoulder as the result of the left total shoulder joint replacement surgery, and that there was no contrary medical evidence submitted by the carrier.

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

FACTS

This case was previously established for a work-related left shoulder injury. The average weekly wage for the year before the February 10, 2010, work-related accident was set at $1,186.00. The claimant was ultimately awarded a 33.75% schedule loss of use award for the left arm during a hearing held on March 21, 2012. The issue of a consequentially related right shoulder condition was raised during the July 13, 2015, hearing, with prima facie medical evidence being found by way of Dr. Lassiter's medical report dated December 14, 2014. The carrier waived its opportunity to produce an independent medical examination report, so the record was developed by way of the claimant's lay testimony and Dr. Lassiter's medical testimony.

The claimant testified that he began having difficulty with his right shoulder after having a left total shoulder replacement surgery on October 9, 2014. He had bilateral shoulder pain during a December 15, 2014, office visit with his doctor. The claimant reported that the right shoulder symptoms had begun months earlier because he was compensating for the left shoulder. He used his right arm more while working as a cook in a pizzeria. He had no prior injuries or surgeries to the right shoulder. The claimant has not been able to return to work since the October 9, 2014, surgery.

When questioned by the WCLJ, the claimant confirmed that he is right handed, and had been working in a pizzeria three days a week preparing lunches and dinners. The claimant testified he told his doctor that he lifted pots and pans with his right hand.

Dr. Lassiter, the claimant's treating orthopedic surgeon, testified that he has been treating the claimant since July 7, 2014. The claimant was referred to him by the prior surgeon for complaints of aching and sharp pain in the left shoulder that caused numbness in the left arm and hand. The doctor testified that the claimant first made complaints of right shoulder instability during the November 17, 2014, office visit. On examination, the right shoulder showed crepitus, and the joint would dislocate out the back while lifting the right arm. The doctor diagnosed the claimant with right shoulder instability. The doctor testified that the right shoulder condition was caused by overusing the right arm after the compensable left shoulder injury.

On cross-examination, Dr. Lassiter confirmed that the prior left shoulder surgery was performed by Dr. Bowman in January 2011. The doctor confirmed that he performed a left total shoulder arthroplasty on October 9, 2014. The doctor admitted that he did not take a history about the claimant's activities at his job. During the December 15, 2014, office visit, the claimant said his right shoulder hurt more over the past year because he could not use the left shoulder, and he was using the right arm to lift and pull.

The Board file contains many reports from Dr. Lassiter. The November 17, 2014, report indicates that the claimant's right shoulder examination was positive for crepitus, posterior instability and mild weakness. The doctor reported that the right shoulder condition was likely caused by the left shoulder injury. The December 15, 2014, office note indicates that the claimant reported right shoulder pain that increased over the past year. The claimant reported using his right shoulder for lifting and pulling because of the left shoulder injury.

In a reserved decision filed February 8, 2016, the WCLJ disallowed the claim for a consequential right shoulder injury, finding that Dr. Lassiter's opinion was "based upon conjecture and speculation and not sound medical reasoning."

The claimant sought administrative review of the WCLJ's decision.

LEGAL ANALYSIS

When the "medical opinion of claimant's treating physician [is] neither speculative nor a general expression of possibility and it 'signif[ies] a probability as to the underlying cause of the claimant's injury which is supported by a rational basis' (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]," and when there is no conflicting medical evidence, the Board may not reject the treating physician's uncontroverted medical opinion on causation (Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177 [2011] [additional internal citations omitted]).

The Full Board finds that the medical opinion of Dr. Lassiter is credible because he was aware of the significant nature of the claimant's left shoulder injury, which resulted in a total shoulder replacement surgery. Additionally, the doctor had taken a history that the claimant had increasingly used his right shoulder to lift and pull, and he examined both shoulders. The doctor's opinion that the left shoulder led to the onset of the right shoulder condition is rational, reasonable and supported by a preponderance of the evidence.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that claimant sustained a consequentially related right shoulder injury.

CONCLUSION

ACCORDINGLY, the WCLJ's reserved decision filed February 8, 2016, is MODIFIED to amend this claim to include a consequentially related right shoulder injury. In all other respects the decision is affirmed. No further action is planned by the Board at this time.