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Case # G0563699
Date of Accident: 02/21/2012
District Office: NYC
Employer: Consolidated Edison Company of
Carrier: Consolidated Edison Co of NY
Carrier ID No.: W373005
Carrier Case No.: B278400602000101784
Date of Filing of Decision: 03/24/2017
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 February 28, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 19, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim should be amended to include a consequential left knee injury. In a decision filed on July 2, 2015, the Workers' Compensation Law Judge (WCLJ) amended the claim to include consequential exacerbation of a pre-existing left knee arthritis. The self-insured employer (SIE) noted its exception to this finding on the record. The WCLJ also resolved outstanding C-8.1 objections for medical treatment involving the left knee in favor of the provider, and the treatment requested by Dr. Farakh for injections was authorized for both knees.

The Board Panel majority affirmed the WCLJ decision, concluding Dr. Farakh's opinion that the claimant's left knee was consequentially related and Dr. Leppard's concession that claimant's right knee injury may have resulted in a "minimalist" contribution to the left knee injury, supported establishing the claim for consequential exacerbation of a pre-existing left knee arthritis. The Board Panel majority rescinded the Workers' Compensation Law (WCL) § 114-a(3)(i) penalty assessed against the SIE for failing to timely file the deposition transcript of Dr. Farakh.

The dissenting Board Panel member concluded that the consequential left knee injury claim should be disallowed as the medical evidence falls short of establishing a causal relationship. The dissenting Board Panel member credited the opinion of Dr. Leppard that claimant's left knee condition was due to pre-existing degenerative arthritis and prior issues with respect to his left knee that resulted in surgery, and that arthritis can be progressive irrespective of any trauma.

In its application for Mandatory Full Board Review, the SIE contends that the Board Panel majority's decision is not supported by substantial evidence. The SIE argues that the claim for a consequential left knee injury should be disallowed based on the credible testimony of Dr. Leppard that claimant's left knee injury is due to age and body habitus, and the concession made by Dr. Farakh that arthritis can develop as a result of the natural aging process.

In rebuttal, the claimant argues that the decision of the Board Panel majority should be affirmed in its entirety.

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

FACTS

This case is established for a work-related injury to the claimant's right knee, which occurred on February 21, 2012.

In a decision filed on October 24, 2014, a WCLJ found prima facie medical evidence for a consequential left knee injury per the medical reports of claimant's physician, Dr. Farakh, and directed the SIE to produce an independent medical examination within 60 days.

In a decision filed on February 23, 2015, the parties were directed to take the depositions of Dr. Farakh and the carrier's consultant, Dr. Leppard, with transcripts to be filed by May 26, 2015.

At a deposition held on May 12, 2015, the SIE's consultant, Dr. Leppard, testified that he first examined the claimant on June 27, 2012. Dr. Leppard opined that the claimant was overweight and had degenerative arthritis in both knees. Dr. Leppard next examined the claimant on March 26, 2014, after the claimant had undergone right knee arthroscopic surgery for pre-existing degenerative arthritis. The claimant informed Dr. Leppard that he previously had issues with his left knee. Dr. Leppard's diagnosis following the March 26, 2014, exam did not change from his prior diagnosis. He noted again the claimant's comorbidities, including excess weight, aging factors, underlying degenerative arthritis and peripheral edema. Dr. Leppard examined the claimant again on November 19, 2014. The claimant provided an interim history of a prior left knee surgery. The claimant complained of bilateral knee pain. Dr. Leppard performed an examination and his diagnosis remained the same. Dr. Leppard opined that 90-95% of the claimant's diagnosis was attributable to degenerative arthritis, excess weight and comorbidities associated with the aging process. The doctor opined that claimant's left knee injury "has little, if anything, to do with" his compensable right knee injury. After being provided with additional records, Dr. Leppard issued an addendum on December 17, 2014, in which he concluded that his opinion remained that the claimant's left knee condition was the result of his arthritis, age and weight. In an addendum dated January 15, 2015, issued after reviewing additional medical records, Dr. Leppard's opinion remained the same, namely that the claimant had degenerative arthritis in both knees.

On cross-examination, Dr. Leppard opined that "any activities of daily living, whether work related or not...can exacerbate an underlying condition, but are not in totality the causal relationship of that entity." Dr. Leppard also testified that "I can't with any certainty say that his work-related activities were causative. I can say that it's reasonable to assume there may be a minimalist contribution, but that would be the smallest percentage."

At a deposition held on May 20, 2016, Dr. Farakh testified that he has seen the claimant over the course of three years, approximately every six weeks. Dr. Farakh first examined the claimant on February 23, 2012, and on that date reported a work-related right knee injury that occurred on February 21, 2012. Causally related right knee surgery was performed on December 13, 2013. The claimant began to complain of left knee pain nine months after his right knee surgery, at an office visit on September 11, 2014. The claimant complained of left knee pain starting two weeks prior to that visit with activities. The claimant denied a new injury to the left knee, and stated that he had placed pressure on his left knee in the last three years because of the pain in his right knee. Dr. Farakh's impression is that the claimant had left knee effusion and tenderness, with limited range of motion. He opined that the left knee injury developed as a consequence of a right knee injury and is causally related. Dr. Farakh diagnosed the claimant with osteoarthritis of the left knee. When asked if he was aware if the claimant ever had any prior issues with his left knee, Dr. Farakh indicated that claimant specifically advised him the he had left knee surgery in 1994 and pain in his left leg resolved after the surgery. He is recommending physical therapy and gave the claimant a cortisone injection. Jell injections were denied. Dr. Farakh last treated the claimant on April 9, 2015. At that time the claimant was complaining of pain in both knees, the left more than the right. He is still of the opinion that the claimant's left knee injury was consequential to the established right knee injury. Claimant did not report any new injury to his left knee as of the April 9, 2015, visit. On re-direct, Dr. Farakh testified that when he first began to treat the claimant in 2012, that he made no complaints concerning, and sought no treatment for, his left knee. He made no complaints concerning his left knee prior to September 11, 2014. He opined that the arthritis in his left knee could be exacerbated by the additional pressure placed on his left knee to compensate for his right knee injury.

On cross-examination, Dr. Farakh noted that the claimant does have an arthritic left knee, and that he cannot pinpoint when that started. Dr. Farakh opined that the claimant had asymptomatic arthritis in his left knee that became symptomatic as a result of walking with a cane and limping due to his compensable right knee injury. Arthritis can be progressive irrespective of any trauma, and could be brought on by the natural aging process. He did not believe the prior surgical intervention caused the claimant's current condition. Dr. Farakh would like to try jell injections in the left knee. The claimant is presently ready to be scheduled. X-rays have shown that the claimant has arthritis and joint effusion in his left knee.

In a decision filed on May 29, 2015, the WCLJ concluded that the SIE failed to timely file the deposition transcript of Dr. Farakh, necessitating an adjournment and the assessment of a $500 penalty against the SIE pursuant to WCL § 114-a(3)(i).

In a decision filed on July 2, 2015, the WCLJ amended the claim to include consequential exacerbation of a pre-existing left knee arthritis.

The SIE sought administrative review of the WCLJ decision.

LEGAL ANALYSIS

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]). "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]; Matter of Trickel v Judski Assoc., 247 AD2d 778 [1998])." (Matter of Wallace v Oswego Wire, Inc., 29 AD3d 1057 [2006]).

Dr. Farakh testified that he began treating the claimant shortly after claimant injured his right knee at work on February 21, 2012, and that he continued to treat the claimant approximately every six weeks through April 9, 2015. Dr. Farakh testified that he was aware that claimant had surgical intervention with respect to his left knee in 1994, that the claimant informed him that his left knee issues resolved following that surgery, that when claimant began treatment with him in 2012 he did not register any complaints with respect to the left knee, that he had no left knee complaints for a nine month period following his right knee surgery, and that he only registered complaints about the left knee at an office visit on September 11, 2014, noting that this left knee pain started a few weeks earlier. Based on the history provided to him, Dr. Farakh credibly testified that the claimant's pre-existing, asymptomatic left knee arthritis became symptomatic only after he began to place additional pressure on his left knee following right knee surgery on December 13, 2013.

Therefore, the Full Board finds that the preponderance of the evidence of record supports amending this claim to include a consequential left knee injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 2, 2015, is AFFIRMED. No further action is planned by the Board at this time.