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Workers' Compensation Board

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Case # G1406648
Date of Accident: 09/04/2015
District Office: NYC
Employer: NYC Taxi & Limousine Comm
Carrier: CNY Other Than Ed, HEd Water
Carrier ID No.: W847008
Carrier Case No.: W1561594029
Date of Filing of Decision: 12/20/2017
Claimant's Attorney: Rella & Associates, PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 15, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether left total hip replacement surgery is causally related to claimant's established injury.

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

The Board Panel majority disagreed and authorized the claimant's left hip replacement surgery as it was causally related to his compensable injury.

The dissenting Board Panel member would affirm the WCLJ's finding that claimant's left hip replacement surgery was not causally related to his workers' compensation accident.

The carrier filed an application for Mandatory Full Board Review on March 17, 2017, arguing that the claimant's left hip replacement surgery was not causally related to his work accident, but the result of the claimant's pre-existing arthritis.

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 work-related injuries to the claimant's back, bilateral elbows, left knee, and bilateral hips as a result of an accident that occurred on September 4, 2015.

Dr. Wilson, the claimant's treating orthopedist, was deposed on August 1, 2016, and testified that he first treated the claimant on September 4, 2015. He diagnosed the claimant with a contusion of the right hip, exacerbation of post traumatic arthritis of the left hip, and contusions of both elbows. Dr. Wilson opined that the accident caused an exacerbation of degenerative arthritis in the claimant's left hip and he now needs a left total hip replacement. The doctor testified that the claimant had been treated with anti-inflammatories, physical therapy, and there were no other recommended treatments. The claimant had previously had a right total hip replacement in 2011. He based his opinion concerning the claimant's left hip arthritis on his clinical history. The claimant's pain was manageable and he was functional before the accident and, after the accident, he had daily pain and he is unable to perform his duties at work. The claimant had previously been diagnosed with arthritis of both hips.

Dr. Chiaramonte, the carrier's consultant, conducted an independent medical examination (IME) of the claimant on February 17, 2016, and was deposed on August 8, 2016. The doctor testified that the claimant provided a history of being in a work-related motor vehicle accident on September 4, 2015. Dr. Chiaramonte opined that the claimant has degenerative osteoarthritis of both hips, he needs a total left hip replacement, but the hip replacement is not related to the accident. The claimant's left hip degenerative changes were not related to the accident, and were "due to his activity, his background, and his morbid obesity" (p. 8). Dr. Chiaramonte opined that trauma can exacerbate pre-existing arthritis to make it necessary to perform a total hip replacement. On cross-examination, the doctor testified that he did not review any of claimant's prior medical records and the only document he reviewed relative to this claim was a C-2 dated September 15, 2015. Dr. Chiaramonte testified that he did not know any details regarding the claimant's prior treatment to his left hip, including physical therapy.

At the hearing held on September 15, 2016, the WCLJ determined that Dr. Chiaramonte was more credible and denied the claimant's left hip replacement surgery. That finding is memorialized in a notice of decision filed on September 8, 2016.

In the claimant's application for administrative review, he argued that the WCLJ erred in finding that the need for a left total hip replacement was not causally related to his September 4, 2015, work injury.

The carrier did not file a timely rebuttal.

LEGAL ANALYSIS

The need for surgery is causally related, and therefore the liability of the carrier, when it is caused, contributed to, or hastened by claimant's work-related injury (Matter of Cold Spring Hills, 2009 NY Wrk Comp 20603593).

Here, Dr. Wilson credibly opined that the accident caused an exacerbation of degenerative arthritis in the claimant's left hip and he now needs a total left hip replacement. The doctor testified that the claimant had pre-existing arthritis in his left hip, but was able to manage his pain and perform his job duties prior to the accident. In addition, both Dr. Wilson and Dr. Chiaramonte opined that trauma can exacerbate pre-existing arthritis to make it necessary to perform a total hip replacement.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant's work-related injury contributed to and hastened the need for claimant to undergo left hip replacement surgery, and that the surgery is therefore casually related to his compensable injury and is the liability of the carrier.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed September 8, 2016, is MODIFIED to find that left hip replacement surgery is casually related and is therefore authorized. No further action is planned by the Board at this time.