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Case # G0578253
Date of Accident: 03/26/2012
District Office: NYC
Employer: The TJX Companies Inc
Carrier: American Zurich Insurance Co
Carrier ID No.: W036636
Carrier Case No.: 2440152452
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: The Klein Law Group
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 June 3, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether this claim should be amended to include an injury to the left shoulder.

The Workers' Compensation Law Judge (WCLJ) amended the claim to include the left shoulder.

The Board Panel majority modified the WCLJ's decision to clarify that the claim was amended to include a consequential injury to the left shoulder. In all other respects the WCLJ decision remained the same.

The dissenting Board Panel member would disallow the claim for a work-related injury to the left shoulder.

In the carrier's application for Mandatory Full Board Review, it argues that the majority decision is not based upon a preponderance of the evidence and that there is no credible evidence to include the left shoulder as either a direct or consequential injury.

The claimant did not file a timely rebuttal.

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

FACTS

This matter is established for injuries to the claimant's neck, back, left hand, and a consequential major depressive disorder that were sustained as the result of a work-related accident that occurred on March 26, 2012. The claimant's average weekly wage was set at $175.27.

Dr. Emmanuel, a board certified orthopedic surgeon, conducted an Independent Medical Examination (IME) of the claimant on December 22, 2014, and was deposed on August 10, 2015. The doctor testified that the claimant provided a history of slipping backwards at work and injuring her head, neck, back, left wrist, and left hand. The claimant was getting physical therapy, chiropractic treatment, and pain management, she had not had surgery, and she was using a left wrist brace. At the examination, the claimant complained of pain in her neck, left wrist, left hand, and lower back and she had a pain patch over her left shoulder. The claimant provided a history of injuring her shoulder at the time of the accident. The doctor testified that his examination of the claimant's left shoulder indicated no atrophy of the deltoid, no tenderness on palpation, full range of motion in flexion, abduction, adduction, internal rotation, and extension, and negative Apley, Drop Arm and Apprehension tests. The doctor opined that the claimant's left shoulder was not causally related to her accident because she first mentioned her left shoulder more than a year after the accident on November 7, 2013, and she did not mention her left shoulder at the examination until he saw the patch. Dr. Emmanuel opined that the claimant would have needed to have pain in the left shoulder a few days to a few weeks after the accident for him to find that the accident caused the injury to the left shoulder.

Dr. Cohen, the claimant's treating orthopedic surgeon, was deposed on September 10, 2015, and testified that he first started treating the claimant on August 1, 2012. An MRI of the claimant's left wrist indicated a tear of the triangular fibrocartilage complex and a scaphoid lunate ligament injury. The claimant initially complained about her left shoulder on December 28, 2013, and his examination that day indicated left shoulder forward flexion was limited to 80, normal 180, abduction was 80, normal 180, and motor strength was 4 out of 5, normal 5/5. Dr. Cohen opined that the claimant had adhesive capsulitis, an inflammation of the capsule around the shoulder joint, which was consequentially related to her accident. The doctor testified that the claimant had been conservatively treating for over a year for a tear of the triangular cartilage scaphoid lunate ligament to the left wrist with a wrist splint and injections and opined that this led to diffuse stiffness of the anterolateral left shoulder. He examined the claimant's left shoulder on July 1, 2015, and her forward flexion was 90, abduction was 90, strength was 4 out of 5, and she had a positive Hawkins test. Dr. Cohen opined that the claimant had not reached maximum medical improvement because her left shoulder condition required testing and treatment, including an X-ray, an MRI, multiple cortisone injections, and possibly arthroscopic surgery with manipulation and release of adhesions. The doctor opined that the claimant was permanently totally disabled for her neck, back, and left wrist. The claimant had shoulder/hand syndrome and the disuse of her left wrist resulted in adhesive capsulitis.

At the hearing held on September 25, 2015, memorialized in a notice of decision filed on October 2, 2015, the WCLJ determined that the claim should be amended to include the left shoulder based on the more credible opinion of Dr. Cohen.

In its application for administrative review, the carrier objected to the portion of the decision that amended the claim to include the left shoulder because the credible medical record did not support the inclusion of the shoulder.

The claimant did not file a timely rebuttal.

LEGAL ANALYSIS

"[It is the] 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 conflict of medical opinions presents a question of fact for the Board to resolve (Matter of Panagiotatos v Eastman Kodak Co., 222 AD 2d 877 [1995]). Additionally, "the Board is the final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief" (Matter of McCabe v Peconic Ambulance & Supplies Inc., 101 AD2d 679 [1984]). In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

In this matter, the Full Board finds that Dr. Cohen credibly opined that the claimant's left shoulder condition was the result of her left wrist treatment, including the use of a sling for over one year that resulted in the underuse of both her left wrist and her left shoulder. Dr. Emmanuel opined that the claimant's left shoulder condition was not related to her work accident because she did not report it for more than a year after the accident and she would have needed to have pain in the left shoulder a few days to a few weeks after the accident for him to find that the accident caused the injury to the left shoulder. The courts have long recognized that a consequential injury is compensable, provided there is a sufficient causal nexus between the initial work-related injury for which a claim is established and the subsequent injury (see e.g. Matter of Barre v Roofing & Flooring, 83 AD2d 681 [1981]; Matter of Pellerin v N.Y.S. Dept. of Corrections, 215 AD2d 943 [1995], lv den 87 NY2d 806 [1996], Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]). Here, the claimant's left shoulder condition developed over time as a consequence of the year-long treatment of the injuries to her left wrist, which resulted in the claimant not reporting any left shoulder pain until more than a year after the accident happened.

Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the credible evidence, that the claimant sustained a consequential injury to her left shoulder.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 2, 2015, is MODIFIED to clarify that this claim is amended to include a consequential injury to the claimant's left shoulder and, in all other respects, remains the same. No further action is planned by the Board at this time.