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Workers' Compensation Board

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Case # G0644490
Date of Accident: 10/19/2012
District Office: Albany
Employer: Newburgh Enlarged City
Carrier: Newburgh Enlarged CSD
Carrier ID No.: W841258
Carrier Case No.: 0006W20748
Date of Filing of Decision: 05/19/2017
Claimant's Attorney: Ouimette, Goldstein & Andrews, 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 April 11, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant's need for back surgery was causally related to her October 19, 2012, work injury.

The Workers' Compensation Law Judge (WCLJ) found that the claimant's need for back surgery was not causally related.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would have found that the claimant's surgery is causally related.

The claimant filed an application for Mandatory Full Board Review on May 9, 2016, arguing that her back surgery should be found to be causally related to the October 19, 2012, work injury.

The carrier filed a rebuttal on June 7, 2016.

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

FACTS

The case is established for injuries to the claimant's back and right index finger resulting from a work accident that occurred on October 19, 2012.

The claimant initially treated with orthopedist, Dr. Renaldo, starting on October 23, 2012. Dr. Renaldo indicated that the claimant, an art teacher, reported that she "landed on an unstable stool at work and landed down on an outstretched hand and her back." Dr. Renaldo noted that the claimant does have a history of sacroiliac joint issues, but that this injury is different. Dr. Renaldo diagnosed the claimant with right finger sprain, low back sprain, and thoracic sprain. As of January 17, 2013, Dr. Renaldo reported that the claimant was doing well, she had a resolved lumbar sprain, and she could return to work. However, as of March 15, 2013, Dr. Renaldo reported that the claimant went back to work and is now having a lot of pain and wants to go to massage therapy.

Thereafter, claimant continued to treat with Dr. Renaldo for back pain until November 8, 2013. In his report of that date, Dr. Renaldo indicated another prescription/referral for massage therapy was being made, that he did not feel that the claimant will have any long term disability secondary to her back issues, and noted that the claimant would follow-up with him on an as needed basis.

The claimant started treatment with orthopedist, Dr. Rauschenbach, on May 15, 2014. In his initial report, Dr. Rauschenbach indicated that the claimant's horrible back pain began five days earlier on May 11, 2014. In a series of C-4 reports, covering the period May 15, 2014, to December 2, 2015, Dr. Rauschenbach diagnosed the claimant with lumbago and lumbar disc degeneration. In a report based on an August 28, 2014, examination, Dr. Rauschenbach indicated that the claimant's back problem stems from her work-related injury back in October 2012. In an amendment to the August 28, 2014, note, Dr. Rauschenbach indicated that "I have been asked to clarify that this is an exacerbation of her pre-existing condition related to her September 2012 work-related injury." Dr. Rauschenbach consistently opined that as of May 27, 2014, the claimant could return to work without limitations.

The claimant was examined by the carrier's consultant, Dr. Weinstein, on October 15, 2014, and a corresponding report was issued. Dr. Weinstein indicated that the diagnosis of lumbar sprain/strain is causally related to the injury at work on October 19, 2012. Dr. Weinstein further indicated that the claimant's lumbar degenerative disc disease and lumbar foraminal narrowing at L5-S1 is pre-existing and not causally related to the injury of October 19, 2012. Dr. Weinstein stated that the claimant's recent development of a lumbar disc herniation documented on the CT scan and her left S1 radiculopathy is also unrelated to her work injury and is the result of the progression of her pre-existing lumbar degenerative disc disease and lumbar foraminal narrowing. Dr. Weinstein indicated that the claimant had a new development of left lumbar radicular symptoms that were not a result of the work injury and given that the symptoms were 1.5 years after the work injury, they were not related to the work injury of October 19, 2012. Dr. Weinstein further opined that the claimant's lumbar sprain/strain injury has resolved and the disc herniation is a new development resulting from a more recent injury to the claimant's pre-existing degenerative disc disease at L5-S1. Dr. Weinstein opined that those conditions are not causally related to the work injury on October 19, 2012.

In a series of reports, covering the period November 12, 2014, to March 20, 2015, the claimant's attending physician, Dr. Cuartas, diagnosed the claimant with lumbar disc displacement without myelopathy and sciatica. Dr. Cuartas consistently indicated that he feels the claimant's symptoms are causally related to the injury at work, as the complaints are consistent with the history of the injury, which is consistent with his objective findings.

In a C-4 report dated November 21, 2014, the claimant's attending physician, Dr. Degen, diagnosed the claimant with a herniated lumbar disc. In the corresponding medical narrative report, Dr. Degen reviewed and compared an MRI of the claimant's lumbar spine performed November 17, 2014, with an MRI performed on May 21, 2014, and a CT scan of the lumbar spine performed August 23, 2014. Dr. Degen noted the left side disc herniation was not present in May 2014, but did appear on the August 23, 2014, CT scan. Dr. Degen indicated that the claimant's left lower extremity pain is likely related to the disc herniation. Dr. Degen further indicated that the claimant's "chronic back pain may or may not be related and may well be a separate issue."

On November 23, 2014, both Drs. Cuartas and Degen filed separate requests for authorization to perform back surgery on the claimant.

Dr. Rauschenbach testified on December 2, 2014, that he first treated the claimant on May 15, 2014. Over the last 15 years, he had seen the claimant for other things. He has been treating the claimant for low back pain with intermittent radiculopathy. Dr. Rauschenbach confirmed that it was his opinion that the back pain is related to the 2012 work injury. He saw the claimant for back pain on February 5, 2009. Dr. Rauschenbach confirmed that he treated the claimant regarding low back pain on March 1, 2011, and he had diagnosed her at that time with lumbar sprain/strain. Another doctor at his practice treated the claimant on October 23, 2012, after her work injury, and the corresponding report indicated that x-rays did not show anything significant, just minor arthritic change. Thereafter, his partner saw claimant five times up to November 8, 2013, and the claimant did not complain about radiating pain. On May 15, 2014, the claimant had low back pain for five days which radiated to her right buttock and into her leg. This was the first documentation of radiating pain into the lower extremities. An MRI on May 22, 2014, showed a diffuse disc bulge at L5-S1 and a small cyst off her sacrum. The doctor confirmed that the findings on the May 22, 2014, MRI were at a different level then where she injured her back in October 2012. A CT scan on August 23, 2014, revealed a disc herniation at L5-S1. He last saw the claimant on October 23, 2014. Dr. Rauschenbach stated that there is a possible causal relationship between claimant's fall and her disc herniation. Dr. Rauschenbach stated, however, that "it is strange that she had no back issues for a year in between - the initial fall and her subsequent symptoms now." Dr. Rauschenbach confirmed that the claimant's low back pain with radiation since May 2014 was probably related to the 2012 injury.

By a decision filed December 11, 2014, the WCLJ denied the two MG-2s filed November 24, 2014, without prejudice and continued the case for deposition of the medical witnesses.

In an addendum dated December 16, 2014, Dr. Weinstein indicated that his opinion has not changed on the lack of causal relationship of the claimant's current lumbar disc herniation and left S1 radiculopathy. Dr. Weinstein opined that the lumbar sprain/strain injury at work was not the source or etiology for the current left L5-S1 disc herniation and subsequent left S1 radiculopathy. Dr. Weinstein indicated that the claimant's development of a lumbar disc herniation is likely the result of progression of her lumbar degenerative disc disease that is pre-existing. Dr. Weinstein noted that the "lapse in time of 22 months between the claimant's work injury and the sudden development of radicular symptoms does not support a relationship between the claimant's work injury and her current lumbar disc herniation and left lumbar radicular symptoms."

Dr. Degen testified on January 21, 2015, that he first saw the claimant on November 21, 2014. The claimant reported the underlying October 2012 work injury. The claimant also reported that in May 2014, she had another injury at work, when she experienced right leg pain, her right leg gave out under her, and she fell to the ground. It was clear from the history that the claimant injured her back in the first fall and that the subsequently herniated disc was the result of her prior injuries. Dr. Degen recommended a lumbar discectomy. The claimant's pre-existing condition in her back from the October 2012 injury, could be a competent producing cause for her to further injure her back, increase her symptoms, and create radicular pain as well. In May 2014 the claimant had degeneration of the disc which appeared chronic and would be consistent with an old injury and not a new injury. It would be unlikely for a young woman, like claimant, to have degeneration like she experienced, without some sort of trauma. Dr. Degen confirmed that the MRI in 2014 was negative for a disc herniation. He requested authorization for a lumbar discectomy at L5-S1. Dr. Degen stated that is was most likely that the disc herniation occurred on August 2014 when the claimant began to have more serious pain down her leg. The claimant's herniation is responsible for the pain going down her leg, the abnormal reflex, and it may be attributed to her back pain. However, the back pain may also be because of the prior injury, not necessarily the herniated disc.

Dr. Weinstein testified on January 30, 2015, that he examined the claimant on October 15, 2014. Claimant reported that on October 19, 2012, she sat down on a circular bench in the cafeteria and fell injuring her back, that in May 2014 she had the sudden onset of mid-line lower back pain with numbness and weakness in the legs, and then in August 2014, she was at home sitting down eating ice-cream when she had marked increase of her lower back pain and numbness in the left leg and foot. He diagnosed the claimant with lumbar sprain/strain, lumbar disc herniation with subsequent L5-S1 radiculopathy, lumbar degenerative disc disease, and lumbar foraminal narrowing at L5-S1. Dr. Weinstein opined that the lumbar sprain/strain was causally related to the October 2012 work injury. Dr. Weinstein further opined that the lumbar degenerative disc disease and lumbar narrowing were pre-existing and not causally related to the injury of October 19, 2012. Dr. Weinstein further opined that the subsequent lumbar herniation on the August 23, 2014, CT scan and the subsequent left S-1 radiculopathy was also not causally related. Based on the MRI scan in May 2014, and the CT scan in August 2014, the claimant's disc herniation developed sometime between May 21, 2014, and August 23, 2014. Although it is possible that the traumatic injury the claimant suffered when she fell at work could have accelerated the degenerative process that was already taking place, there was no indication of any acceleration on the 2014 MRI, which was taken a year and a half after her work injury. If the claimant's traumatic fall at work in October 2012 accelerated her degenerative disc disease to the point of causing a disc herniation, he would expect to see symptoms occurring around the time of the injury, and not two years later as they did. Dr. Weinstein further opined that surgery would not be related to the injury on October 19, 2012, as the disc herniation, in his opinion, is not related.

Dr. Cuartas testified on February 12, 2015, that he first examined the claimant on October 31, 2014. At that time the claimant reported the October 2012 work accident. The claimant further reported that on August 28, 2014, she went to the emergency room because her symptoms began to worsen and she had severe pain in the lower back. All the findings on examination were suggestive of a disc herniation with pinched nerve or radiculopathy. An MRI from May 21, 2014, revealed disc bulging with borderline bilateral neuroforaminal narrowing at L5-S1. As the claimant had failed conservative care she required surgery. A further MRI showed a left paracentral disc protrusion at L5-S1 and that he felt that this was a progression of the same injury. Dr. Cuartas opined that the need for surgery is causally related to the injury at work, and represented a progression, or gradual worsening of the initial problem. He has recommended that a hemilaminotomy and a discectomy be performed, which are designed to address a disc herniation. As far as he is aware, the claimant did not have any radicular pain prior to May 2014. Although the radiologist who read the May 2014 MRI indicated that the claimant had a diffuse disc bulge and expressly stated that there was no evidence of a disc herniation, Dr. Cuartas disagreed, and felt that the May 2014 MRI showed that the claimant had a disc herniation at L5-S1. Dr. Cuartas indicated that the claimant denied any specific injury or trauma that caused her to go to the emergency room on August 28, 2014. Dr. Cuartas conceded that it is possible that the claimant could have simply sat down on the couch and experienced a herniation, without any additional trauma other than sitting on the couch. However, he felt that the claimant injured the disc in the original October 2012 accident, and that the natural progression of a disc disruption is proceeded to a herniation.

During a hearing on April 16, 2015, the WCLJ found that the back surgery is not causally related. The WCLJ found that the medical evidence of causal relationship is weak and not credible, and that the disc herniation, which created the need for surgery, was not causally related to the 2012 incident. The WCLJ resolved the carrier's C-8.1 objection in favor of the carrier and found no compensable lost time. The WCLJ's findings were memorialized in a decision filed April 21, 2015.

The claimant filed an application for administrative review arguing that the medical evidence supports that the claimant's need for back surgery is due to the work-related injury of October 19, 2012.

In rebuttal, the carrier argued that the WCLJ decision should be upheld in its entirety. The carrier asserted that the claimant's history of back pain predates her workplace injury and that the WCLJ properly weighed and credited the conflicting medical evidence.

LEGAL ANALYSIS

"[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]).

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, the claimant sustained a lumbar strain/sprain in October 2012, when she fell off a bench at work. The claimant's treating physician at the time, Dr. Renaldo, reported that as of January 17, 2013, the claimant was doing well, her lumbar sprain had resolved, and she could return to work. On March 15, 2013, after returning to work, the claimant returned to Dr. Renaldo with thoracolumbar pain. Upon examination, Dr. Renaldo found that although the claimant had some mild soreness over her thoracolumbar area, she was grossly neurologically intact. Claimant treated with Dr. Renaldo until November 8, 2013. In his report of that date, Dr. Renaldo opined that he did not feel that the claimant would have any long term disability secondary to her back issues. In May 2014, the claimant started treating with Dr. Rauschenbach, because on May 11, 2014, she began experiencing back pain and intermittent radiating pain. The claimant had an MRI in May 2014, which showed degenerative changes of the L5-S1 level with a small bulging disc without nerve root compression. In August 2014, while at home eating ice cream on her couch, the claimant experienced the onset of further back pain. The claimant had a CT scan in August 2014, which showed a disc herniation with neuaroforaminal narrowing.

Dr. Weinstein opined that the claimant's lumbar sprain/strain, which was causally related to the October 19, 2012, work injury, had resolved. Dr. Weinstein further opined that the lumbar degenerative disc disease and lumbar narrowing were pre-existing and not causally related to the injury of October 19, 2012. Dr. Weinstein further opined that the subsequent lumbar herniation seen on the August 23, 2014, CT scan and the subsequent left S-1 radiculopathy was also not causally related. Dr. Weinstein opined that based on the MRI scan in May 2014, and the CT scan in August 2014, the claimant's disc herniation developed sometime between May 21, 2014, and August 23, 2014. Dr. Weinstein further opined that surgery would not be related to the injury on October 19, 2012, as the disc herniation, in his opinion, is not related.

Dr. Rauschenbach indicated that the first documentation of radiating pain into the claimant's lower extremities was in May 2014, and that the findings on the May 22, 2014, MRI were at a different level then where the claimant injured her back in October 2012. Dr. Rauschenbach testified that "it is strange that she had no back issues for a year in between - the initial fall and her subsequent symptoms now."

Dr. Degen indicated that the claimant's "chronic back pain may or may not be related and may well be a separate issue." Dr. Degen indicated that the claimant's left lower extremity pain is likely related to the disc herniation, which was not present in May 2014, but did appear on the August 23, 2014, CT scan. Dr. Degen testified that the claimant's herniation is responsible for the pain going down her leg, the abnormal reflex, and it may be causing her back pain.

Dr. Cuartas conceded that it was possible that in August 2014, the claimant could have experienced a herniation without any additional trauma other than sitting on the couch.

Therefore, based upon the preceding, a preponderance of the evidence in the record, including Dr. Weinstein's credible opinion, the concessions made by the claimant's treating physicians that the claimant did not start experiencing radiating pain into her lower extremities until May 2014, about 19 months after her work injury, and that the claimant's need for surgery was caused by the disc herniation, which first appeared in August 2014, almost two years after the claimant's work accident, the record supports a finding that the claimant's need for back surgery is not causally related to the injury at work on October 19, 2012.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed April 21, 2015, is AFFIRMED. No further action is planned by the Board at this time.