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Workers' Compensation Board

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Case # G1247036
Date of Accident: 02/08/2015
District Office: NYC
Employer: Premier Home Health Care Service
Carrier: Charter Oak Fire Ins Co
Carrier ID No.: W054001
Carrier Case No.: E2L5555
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Bronnberg & Henriquez
Panel: Kenneth J. Munnelly


The Full Board, at its meeting on November 15, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 10, 2016.


The issue presented for Mandatory Full Board Review is whether the claimant's disability and need for left shoulder surgery are causally related.

The Workers' Compensation Law Judge (WCLJ) found that the claimant's ongoing disability and need for surgery were not causally related to her February 8, 2015, work-related accident.

The Board Panel majority modified the WCLJ decision, made awards from February 8, 2015, forward at the temporary total disability rate and authorized the surgery requested by Dr. McCulloch.

The dissenting Board Panel member would find that the claimant's ongoing disability and need for surgery are not causally related, and would affirm the WCLJ's findings.

The carrier filed an application for Mandatory Full Board Review on June 9, 2016, asserting that Dr. Killian's opinion that the rotator cuff tear was caused by claimant's stroke is more credible than the opinion of claimant's treating physician that her fall caused the tear.

Claimant filed a rebuttal on July 9, 2016, requesting that the decision of the Board Panel majority be upheld.

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


Claimant, a home health aide, filed a C-3 (Employee Claim) on March 15, 2015, alleging that she sustained multiple injuries on February 8, 2015, when she tripped and fell at work. The carrier controverted the claim.

The Board file contains the report of an MRI of claimant's left shoulder taken on February 28, 2015. The MRI report indicates that the claimant had a partial tear of the anterior supraspinatus tendon with tendinosis, mild tendinosis of the subscapularis with articular sided fraying of the superior portion, and other findings suggesting adhesive capsulitis.

In a March 9, 2015, report, claimant's treating physician, Dr. McGee, stated that the claimant lost her balance and fell at work on February 8, 2015, landing on her left shoulder, and was treated in the emergency room. Dr. McGee noted that claimant had seen her primary care doctor and returned to the hospital on February 15, 2015, based on continuing shoulder pain and to rule out a stroke. Dr. McGee diagnosed claimant with a causally related tear of her left supraspinatus muscle and found that she was totally disabled.

In a March 12, 2015, report, claimant's treating orthopedist, Dr. Price, stated that claimant was being evaluated for left shoulder pain. Claimant reported that she fell at work and landed on her left shoulder. Claimant also reported that she "hit her head and was told she may have had a stroke." Dr. Price diagnosed the claimant with a causally related sprain and strain of the left shoulder.

Dr. Killian performed an independent medical examination of the claimant at the carrier's behalf on May 6, 2015. In his IME-4 report, Dr. Killian concluded that claimant had a stroke which left her with left sided weakness and spasticity. Dr. Killian opined that he did "not feel that the problems with her left upper extremity are attributable from a 2/8/15 fall."

Dr. McCulloch, an orthopedist, examined the claimant on May 22, 2015, for persistent left shoulder pain and recommended arthroscopic surgery to repair a traumatic left shoulder rotator cuff tear. In a clarifying note, Dr. McCulloch confirmed that the left shoulder injuries and need for surgery are causally related to the February 8, 2015, work-related accident.

Dr. McGee, was deposed on May 18, 2015, and testified that he is certified in physical medicine and rehabilitation. Dr. McGee examined the claimant on March 9, 2015, and found that she had significant tenderness over the anterior and posterior portion of the left shoulder. The neer's and cross-chest tests were both positive, which suggest impingement syndrome, and the claimant had decreased range of motion in all planes. The claimant had decreased sensation in the left side C6-8 dermatomes, and decreased strength in the left shoulder. Dr. McGee diagnosed the claimant with adhesive capsulitis and frozen shoulder. The claimant's left shoulder range of motion was limited to sixty degrees of flexion, fifty degrees of abduction, twenty degrees of internal rotation, thirty degrees of external rotation and ten degrees of extension. At a subsequent examination on May 4, 2015, the range of motion of claimant's left shoulder had worsened, with only thirty degrees of flexion, thirty degrees of abduction, twenty degrees of extension and twenty degrees of external rotation.

Dr. McGee testified that the MRI of claimant's left shoulder showed a surface partial tear of the anterior supraspinatus tendonitis with tendinosis and capsulitis. Dr. McGee opined that these findings would be most likely caused by trauma and not by a stroke. Dr. McGee confirmed that the MRI findings corroborated his examination findings. Dr. McGee concluded that the claimant has a temporary total disability, which is causally related to the work-related accident on February 8, 2015.

Dr. Price was deposed on June 19, 2015, and testified that he is an orthopedic surgeon, and that he saw the claimant on March 12, 2015. The claimant presented with a history of left shoulder pain after a fall at work on February 8, 2015. The doctor reported that he reviewed the left shoulder MRI films and report, and they showed that the claimant had a partial tear of the supraspinatus, a muscle in the rotator cuff, and other findings suggestive of capsulitis. Dr. Price reported examination findings of both forward flexion and abduction being limited to ninety degrees, with pain at the endpoint in each plane. The doctor also found that the claimant had positive impingement signs and pain with rotator cuff testing. The doctor diagnosed the claimant with frozen shoulder syndrome and recommended that she continue with physical therapy. Dr. Price had "concerns that she suffered range of motion loss as a result of her convalescence and her stroke" (deposition, Dr. Price, 6/19/15, p. 6-7). When asked whether he could determine whether claimant's shoulder findings were due to the fall or to her stroke, Dr. Price responded, "I think it's a complex scenario. I think she injured her shoulder when she fell. If she had the stroke that will give her potential for upper extremity deficits as well" (p. 7). Dr. Price found that claimant was temporarily totally disabled.

On cross-examination, when asked whether claimant's stroke could be the cause of her symptoms, Dr. Price responded, "Not really, because she fell and landed on her left shoulder. So I think the fall had something to do with her trouble in her left shoulder. Maybe if she had problems in a place where she didn't land I could say it's a reasonable thing to consider, but I mean, to pin this entirely on the stroke I think is a stretch" (p. 10). Dr. Price agreed that it was possible that the stroke could have caused some of claimant's findings. When asked whether the stroke could have affected the range of motion of claimants shoulder, Dr. Price responded that, "People who have a stroke get weakness, they don't get stiffness. They could, but they start with weakness. So it's a complex scenario. I think that the stroke could have contributed, but a direct trauma to landing on her left shoulder is likely to be a culprit here" (id.).

Dr. Killian was deposed on June 8, 2015, and testified that he is an orthopedic surgeon and examined the claimant on April 30, 2015, at the carrier's request. Dr. Killian testified that the left shoulder MRI showed that she had minor abnormalities including a small articular surface partial tear of the supraspinatus tendon with tendinosis and findings suggestive of capsulitis. According to Dr. Killian, claimant had the typical residuals from a stroke that affected the left side of her body. The doctor noted that the claimant had weakness, spasticity, difficulty moving her left shoulder and elbow, as well as difficulty using her left hand. The doctor diagnosed the claimant with residual left arm restricted range of motion and pain after a stroke. The doctor testified that he felt there were no residuals from the contusion claimant suffered in the February 8, 2015, accident. On cross-examination, Dr. Killian asserted that the MRI findings were not caused by trauma, nor would it be possible for them to be caused by trauma.

By a decision filed July 15, 2015, the WCLJ established this claim for a work-related left shoulder injury, but made no awards and denied authorization for surgery, finding that claimant's "[l]eft shoulder is now status quo ante." The claimant requested administrative review of that decision.


"[T]he resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation" (Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135 [2008]; see Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d 1114 [2010]). However, the Board "may not rely upon a medical opinion that is purely speculative rather than demonstrating a reasonable probability as to the cause of an injury. For a medical opinion regarding causation to qualify as competent evidence, it must signify a probability as to the cause of the injuries for which compensation is sought and be supported by a rational basis" (Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067 [2008] [quotation marks and citations omitted]).

Here, claimant fell at work on February 8, 2015, striking her left shoulder, and promptly sought medical attention for pain in her left shoulder. A left shoulder MRI taken on February 28, 2015, showed a partial tear of the anterior supraspinatus tendon with tendinosis. Dr. McGee testified that claimant's left shoulder injury was most likely caused by trauma and not by a stroke. While Dr. Price conceded that this was a "complex scenario" with respect to causation, and that both the claimant's fall and her stroke may have contributed to her shoulder symptoms, it was unlikely that the stroke was solely responsible for her condition, and that the fall was the "likely culprit" that caused the restricted range of motion in claimant's shoulder. Dr. Killian offered no rational explanation for his conclusion that claimant's fall could not have resulted in the rotator cuff tear.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant had a causally related temporary total disability after February 8, 2015, and that the surgery recommend by Dr. McCulloch should be authorized.


ACCORDINGLY, the WCLJ decision filed July 15, 2015, is MODIFIED to find a causally related temporary total disability from February 8, 2015, forward, and to authorize the surgery recommended by Dr. McCulloch. No further action is planned by the Board at this time.