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Workers' Compensation Board

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Case # 00536158
Date of Accident: 08/03/2005
District Office: NYC
Employer: Citywide Central Insurance Pro
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: C375C6961999
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on April 25, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 8, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether this claim should be amended to include consequential injuries to the left shoulder and right knee.

The Workers' Compensation Law Judge (WCLJ) amended the claim to include consequentially related injuries to the left shoulder and the right knee.

The Board Panel majority reversed the WCLJ decision, and found that the claimant's right knee and left shoulder conditions were not consequentially related to the worker's compensation claim.

The dissenting Board Panel member would find that claimant's left shoulder and right knee condition were consequentially related and would affirm the WCLJ's findings.

The claimant filed an application for Mandatory Full Board Review on December 8, 2016, arguing that the case should be amended to include the consequentially related left shoulder and right knee injuries.

The carrier filed a rebuttal on January 4, 2017, asserting that substantial evidence supports disallowing the claim for the consequentially related left shoulder and right knee conditions.

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

FACTS

This claim was previously established for work-related injuries to the neck, back and right shoulder. The average weekly wage for the year before the August 3, 2005, accident was set at $534.75. The claimant was classified with a permanent partial disability during the July 25, 2008, hearing. Prima facia medical evidence for the consequentially related left shoulder and right knee was found during the March 30, 2016, hearing, and the record was developed by way of the medical testimony of Dr. Clarke and Dr. Gorski.

Dr. Clarke testified that he began treating the claimant on August 14, 2014, and took a history of the claimant being injured on the job as a home health aide in 2005. The claimant reported that she had injuries to her right shoulder, left shoulder, low back, and neck. The claimant believed the left shoulder pain was caused by overuse resulting from the right shoulder injury. The claimant had a right shoulder MRI on August 23, 2013, which showed torn tendons, bursitis, effusion, and hypertrophy. MRI's of the neck and back, taken in October 2005, showed disc bulges at L3-4, L4-5, L5-S1, and a bulge at C4-5 that was causing spinal stenosis. The claimant was treated with physical therapy, medications, trigger point injections, and home exercise. During a February 11, 2016, office visit the claimant only complained of right shoulder, neck and low back pain.

Dr. Clarke testified that the left shoulder injury was caused by overuse due to the right shoulder injury. The doctor opined that the right knee complaints are related to the altered body mechanics from the work-related low back injury because she cannot stoop or bend to lift objects, so she bends her knees instead.

On cross-examination, Dr. Clarke confirmed that while claimant's work-related accident occurred in 2005, he did not begin treating her until 2014. Other than diagnostic tests, Dr. Clarke has not reviewed any of claimant's prior medical records pertaining to left shoulder or right knee pain. The doctor confirmed that the claimant did not make complaints of right knee or left shoulder pain during the February 11, 2016, office visit. The claimant's obesity contributes to her right knee pain, but only because of her altered body mechanics from the low back injury. The doctor explained that the left knee was not affected because the right leg is probably her dominant leg. The doctor testified that left knee pain will most likely develop later on.

Dr. Clarke admitted that he had no history regarding the claimant's activities of daily living other than discussing how she bends down to pick up objects from the ground. The doctor also admitted that the degenerative process is probably contributing to the onset of the right knee and left shoulder pain because the claimant is sixty-six years old.

Dr. Gorski was deposed on July 6, 2016, and testified that he examined the claimant for the carrier on April 12, 2016. He took a history of the claimant injuring her neck, back and right shoulder at work in 2005, and developing complaints of right knee and left shoulder pain in 2015. The doctor reported that the claimant was sixty-six years old and has an increased body mass index. On examination the claimant had an antalgic gait on the right side, childhood scars over the right knee, and signs of psoriasis, which Dr. Gorski explained can be related to arthritic changes. The right knee had normal range of motion, no swelling and no instability. The left shoulder had cog wheeling, which is a sign of embellishment. The left shoulder also had a decrease of 20 degrees in forward flexion, negative drop test, negative cross chest adduction sign, negative Neer's test, and no tenderness to palpation. The neck examination showed some limitations with lateral bending and rotation. The right knee had a positive Apley's test.

Dr. Gorski testified that the left shoulder and right knee conditions are not consequentially related because these conditions developed too remotely from the original 2005 accident. The doctor opined that the right knee and left shoulder conditions were caused by degenerative arthritis resulting from her advanced age and obesity. The doctor explained that carrying that much weight accelerated the aging process.

In a reserved decision filed August 16, 2016, the WCLJ amended the claim to include consequentially related left shoulder and right knee conditions. The carrier applied for administrative review asserting that the claim for the consequentially related right knee and left shoulder condition should be disallowed.

LEGAL ANALYSIS

"Whether a claimant's disability consequentially arose from injuries sustained in a previous accident is a factual issue left for resolution by the Board (see Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845 [2002]. 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]).

Here, Dr. Gorski's opinion is most credible because the onset of the consequential injuries were too far removed from the original accident, which bolsters his opinion that the claimant's aging and obesity caused the development of these conditions. Furthermore, Dr. Clarke's medical opinion is undermined by the fact that he has very limited knowledge about the claimant activities such that his conclusion of consequential relationship from overuse and altered body mechanics is too speculative.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant's left shoulder and right knee conditions are not consequentially related to her established injuries.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed August 16, 2016, is MODIFIED to disallow the claims for consequential injuries to the left shoulder and right knee. The decision is otherwise affirmed. No further action is planned by the Board at this time.