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Case # 90700074
Date of Accident: 11/08/2006
District Office: Binghamton
Employer: Towne
Carrier: Maryland Casualty Company
Carrier ID No.: W134001
Carrier Case No.: 2450092340
Date of Filing of Decision: 12/19/2017
Claimant's Attorney: Proudfoot Law Firm
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 10, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim should be amended to include a consequential injury to the claimant's low back.

The Workers' Compensation Law Judge (WCLJ) established the claim for a consequential injury to the back.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the credible medical evidence in the record supports a finding that claimant did not have a consequential injury to his back.

The carrier filed an application for Mandatory Full Board Review on March 3, 2017, urging the Full Board to adopt the opinion of the dissenting Board Panel member.

The claimant filed a rebuttal on April 4, 2017.

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

FACTS

Claimant, a veterinary assistant, suffered a right inguinal hernia on November 8, 2006, while lifting a dog. On January 2, 2007, claimant underwent surgery to repair the hernia. In a February 12, 2007, report, claimant's treating physician, Dr. Huddle, stated that claimant was six-weeks postop and was much improved. Dr. Huddle indicated that claimant's discomfort had decreased, the repair was intact, the surgical wound was optimal and claimant would return as needed.

By a decision filed April 11, 2007, the claim was established for a work-related right inguinal hernia and claimant's average weekly wage was set at $448.17. Awards were made from December 12, 2006, to February 13, 2007, at the temporary total disability rate, awards after February 13, 2007, were held in abeyance, and the decision indicated that no further action was planned by the Board.

The case remained dormant and no further evidence of causally related treatment was submitted until claimant's treating physician, Dr. Bollinger, filed an October 2, 2014, report. In that report, Dr. Bollinger indicated the claimant reported chronic worsening right-sided abdominal and groin discomfort. The claimant reported no present back pain, but Dr. Bollinger noted that claimant had past history of chronic low back pain. Dr. Bollinger indicated that claimant had also suffered a left inguinal hernia in 2005.

In an October 30, 2014, report (doc #2400090940, p. 16-18) nurse practitioner Stewart noted the claimant's history of present illness included pain from inguinal bilateral hernias, with the right side pain becoming worse. She also noted the claimant complained of mild lower back pain, and the claimant denied joint stiffness, sciatica, tingling/numbness or gait abnormality. On examination, the claimant's bilateral straight leg raise was negative, with no edema and no sensory deficits to pinprick in the lower extremities. NP Stewart diagnosed chronic pain following surgery and abdominal pain.

In a November 18, 2014, report, the claimant's treating physician, Dr. Gulati, noted that the claimant reported an intensity of pain localized to the left and right groin, and also reported a history of chronic back pain. Dr. Gulati indicated the claimant did not have an altered gait.

The claimant's treating pain management physician, Dr. Mokureddy, noted in a December 1, 2014, report that the claimant's past medical history included low back pain and the claimant reported taking an opiate occasionally for the pain. Dr. Mokureddy also reported the claimant's current problems included chronic low back pain, and the claimant reported he had depression as a result of not being able to ride his horses because of the hernias.

In a December 8, 2014, report, the claimant's treating physician, Dr. Lax, reported the claimant had a right inguinal hernia, and noted the claimant had right sided groin pain with partial squat, resisted right hip flexion and extension, and lumbar flexion to 20 degrees.

In an IME-4 (Independent Examiner's Report of Independent Medical Examination) dated January 13, 2015, the claimant's medical consultant, Dr. Kachadourian, noted that about two years prior, the claimant developed increased pain localized to the groin area, occasionally extending to the anterior superior iliac spine of the abdomen, and also radiating to the anterior aspect of the mid-thigh. Dr. Kachadourian noted the claimant was ambulating slowly because of the groin pain, was tilted slightly forward and the pain was more severe when claimant was standing in the erect position.

Dr. Lax, in a March 27, 2015, report, stated that the claimant had chronic, severe right groin pain which caused him to lean forward when walking.

In a March 10, 2015, report, Dr. Kim indicated the claimant was seeking a second opinion for his right groin pain. Dr. Kim noted the claimant reported his pain level was 6 out of 10, and that he had a history of low back pain in 2012. Dr. Kim's findings upon examination were normal except for a very small umbilical hernia and right groin pain.

Dr. Lax noted in a June 24, 2015, narrative that the claimant reported "strange feelings to the right side and low back."

In a July 22, 2015, report, the claimant's treating physician, Dr. Fanelli, noted the claimant's gait was normal, and referred the claimant to the pain clinic because Dr. Fanelli concluded that surgery would not help.

An October 26, 2015, report, and MRI of claimant's lumbar spine, revealed degenerated and herniated L5-S1 disk.

Claimant was again examined by Dr. Kachadourian on December 1, 2015. In the resulting IME-4, Dr. Kachadourian noted that the claimant's chief complaint was right groin pain and marked tenderness. Dr. Kachadourian examined the claimant and noted the claimant reported attempting to walk for exercise but experiencing pain while walking, and an MRI of the lumbosacral spine revealed mild disc disease. The claimant reported the pain radiated from his calf to his right foot, and when he was not walking, the pain subsided. On examination, Dr. Kachadourian reported tenderness in the lower abdomen area, and a straight back. Dr. Kachadourian noted the claimant came to the office with a limping gait and used a cane, and the claimant reported all modalities including sitting, standing, walking and climbing stairs caused pain.

In a progress note dated December 7, 2015, Dr. Lax noted the claimant had exacerbated right lower quadrant abdominal pain, and new onset swelling in the right lower extremity with weakness and pain in posterior calf. Dr. Lax also noted the claimant was undergoing physical therapy for treatment of LS L4-L5, and reported the claimant's walking was much more impaired. Dr. Lax also indicated the claimant denied any prior low back injury, he reported the initial onset of lower back pain began on December [sic] 26, 2015, and the claimant denied any history of previous related low back pain or an injury prior to the work-related injury. The claimant reported he had an altered gait since the work-related injury, in order to find maximal relief. The claimant ambulated with a cane and reported walking was limited to 5 minutes at a time. Dr. Lax stated that the seven plus years of altering his gait and posture to minimize the pain in the right lower quadrant at the injury site, resulted in a consequential injury to the lower back.

A CT scan without contrast on December 14, 2015, revealed degenerative changes in the lower thoracic and lower lumbar spine.

In a March 9, 2016, report, Dr. Lax again stated that claimant's low back injury resulted from altering gait and posture for over seven years due to pain from his work-related hernia.

Dr. Kachadorain again examined the claimant on March 15, 2016. In the resulting IME-4, Dr. Kachadorain reported the claimant ambulated with a cane, and appeared to have a limping gait, for which it was difficult to ascertain the cause unless it was associated with the right inguinal hernia. Dr. Kachadourian stated that the claimant had a 75% marked temporary disability. Dr. Kachadourian also noted his concern about the claimant's failure to demonstrate any abdominal symptoms upon deep palpation to the right groin area and suggested follow up in 4 to 6 weeks "to determine the reality of his symptomology" and noted the CT scan dated December 14, 2015, was unremarkable for the pelvis and abdomen.

Dr. Kachadorain reexamined the claimant on May 13, 2016. In the resulting IME-4, Dr. Kachadourian reported that the claimant initially injured his right groin area, and nine years later developed low back pain. The MRI taken on October 26, 2015, revealed disc desiccation at L3-L4 and L4-L5, and indicated a herniation and compromise of the lumbosacral nerves and degeneration of the disc. Upon examination, Dr. Kachadourian reported the claimant ambulated with a cane and had a limping gait. Dr. Kachadourian noted no tenderness in the thoracic or lumbar spine in L3, L4 and L5, and moderate tenderness to deep palpation with no tenderness in the bilateral sacroiliac joints. Dr. Kachadourian diagnosed low back pain with disc herniation at L5-S1 with radiation of pain, unrelated, right groin pain, related, depressive disorder, work unrelated and rule out non-thrombotic phlebitis of the right lower extremity, unrelated. Dr. Kachadourian opined the claimant had reached maximum medical improvement, had a 75% marked disability, and opined the claimant's degenerative and herniated discs were unrelated to the work injury because the claimant had no back pain in prior examinations, but he developed the pain nine years after the work-related injury.

In a July 19, 2016, report, the claimant's treating neurosurgeon, Dr. Bajwa, indicated the claimant reported lower back pain going into the right leg with numbness and tingling going into the right foot. The claimant also reported the hernia injury occurred in 2006, and "around the last many years, the patient started getting gradual worsening of low back pain going into the right buttock and right leg." Dr. Bajwa reported the claimant ambulated with a cane. Dr. Bajwa diagnosed chronic severe low back pain with S1 radiculopathy secondary to herniated lumbar disc at L5-S1, spondylolisthesis of L4-L5, with stenosis, and directed the claimant to bring his MRI scans to the next appointment.

Dr. Kachadourian was deposed on July 22, 2016, and testified that he examined the claimant five times for the carrier (1/13/15; 8/15/15; 12/1/15; 3/15/16 and 5/13/16), and the claimant complained of low back pain for the first time at the examination on May 13, 2016. The claimant had disc degeneration and disc herniation at L5-S1. Claimant's low back pain was not caused by the hernia because there had been too much time since the hernia accident to the complaints of low back pain. Hernias are not known to cause low back pain, unless there are complications with the hernia such as bowel obstruction, bowel gangrene or sliding hernia, but the claimant had none of the complications. During his earlier examination, claimant had not presented with an altered gait that would cause low back issues.

On cross-examination, Dr. Kachadourian testified that trauma and osteoarthritis were the most common causes of herniated discs, and agreed that moving in the wrong direction could also cause disc herniation. Dr. Kachadourian agreed that when the claimant was initially injured by lifting a heavy dog, the claimant fell, and that type of fall could cause herniated discs. He examined the claimant on January 13, 2015, August 18, 2015, December 1, 2015 and March 15, 2016, and the claimant did not report any back pain during those examinations, and the only time the claimant reported back pain was on May 13, 2016. The claimant favored his right lower extremity when he walked and the claimant also favored his right side when he was in a seated position. Back pain could radiate to the groin area, and testified that the back pain would have preceded the groin pain.

On redirect examination, Dr. Kachadourian testified it was not common for people with hernia injuries to develop low back pain, and continuing groin pain does not result in excessive stress on the lumbar spine that causes a herniation.

Dr. Lax was deposed on August 3, 2016, and testified that the claimant was seen on March 9, 2016, by NP Millar, who diagnosed the claimant with low back pain with radiation of the pain to the right groin area. Dr. Lax testified that NP Millar opined the low back pain was caused by the claimant's hernia and groin pain he had experienced for the past seven years, as a result of the claimant altering his gait because of the groin pain. The claimant put unusual stress on the back that manifested itself as the MRI findings.

On cross-examination, Dr. Lax testified the claimant began treating with him on December 6, 2014, and the claimant described the initial injury, the subsequent symptoms, his difficulties with activities of daily living, and his treatment. Dr. Lax testified that the claimant,

has had to change his body mechanics in order to minimize his pain as much as he can, which I think results in increased basically sort of muscle tone in his back and abdomen on that side to keep himself getting into positions that are painful, and I think over a long period of time that has played a role in producing imbalance in the usual sorts of biomechanical forces that are on the low spine and ...helped produce his current problem.

(Deposition, Dr. Lax, 8/3/16, p. 9-10). Dr. Lax confirmed the claimant had no complaints of low back pain during his initial examination at his office, and also had no complaints of low back pain at his March 17, 2015, visit. Dr. Lax confirmed that the claimant first complained of low back pain during his examination on June 24, 2015. His report dated December 7, 2015, noted the claimant denied any prior low back injury. He examined the claimant on July 6, 2016, and that was the first time he had personally examined the claimant. His specialty was occupational medicine and he did not perform surgeries.

In a July 19, 2016, report, Dr. Bajwa, claimant's neurosurgeon, stated that claimant had been experiencing significant pain in his right groin since 2007. According to Dr. Bajwa, "[a]round last many years the patient started getting gradual worsening of low back pain going into the right buttock and right leg."

In a decision filed August 18, 2016, the WCLJ amended the claim to include a consequential injury to the low back.

The carrier filed an application for administrative review, arguing that the claimant's low back condition was unrelated to his employment and should therefore be disallowed.

In rebuttal, the claimant argued that the record supports establishing this claim for a consequential low back injury.

LEGAL ANALYSIS

Claimant's Rebuttal

According to 12 NYCRR 300.13(c):

Rebuttal. A party adverse to the application for administrative review may file a rebuttal to such application for review. The rebuttal shall be in writing and, for parties other than an unrepresented claimant, shall be accompanied by a cover sheet in the format prescribed by the Chair. The rebuttal shall conform to the requirements for requests for administrative review set forth in subdivision (b) herein. Such rebuttal shall be served on the Board and all necessary parties within thirty days after service of the application for review together with proof of service upon all necessary parties in the form and format prescribed by the Chair.

According to 12 NYCRR 300.13(b)(1)(ii):

Documents that are present in the Board's electronic case folder at the time the administrative review is submitted shall not be included with or attached to the application. The Board may reject applications for review by an appellant, or an attorney or licensed representative of the appellant, who attaches documents that are already in the case folder at the time of the application.

Here, in the Rebuttal of Application for Reconsideration/Full Board Review, the claimant attached Dr. Bajwa's EC4-NARR dated August 3, 2016, which was already contained in the case file as Document #268877860. Pursuant to newly adopted regulations, the Board may reject applications for review when a party attaches documents that are already in the case file at the time of the application. However, the Full Board, hereby exercises its discretionary authority to consider claimant's rebuttal.

Additional Documentary Evidence Submitted by Carrier

According to 12 NYCRR 300.13(b)(iii):

If the appellant seeks to introduce additional documentary evidence in the administrative appeal that was not presented before the Workers' Compensation Law Judge, the appellant must submit a sworn affidavit, setting forth the evidence, and explaining why it could not have been presented before the Workers' Compensation Law Judge. The Board has discretion to accept or deny such newly filed evidence. Newly filed evidence submitted without the affidavit will not be considered by the Board panel.

Here, the carrier relies on medical evidence submitted on January 26, 2017, which was not presented before the WCLJ, and the carrier did not submit a sworn affidavit setting forth the evidence and explaining why it should be considered. As the carrier failed to submit the affidavit with the additional medical evidence, the Full Board will not consider the carrier's new medical evidence.

Consequential Injury

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]).

Here, the Board Panel majority concurs with the findings made by the WCLJ that the medical opinion of Dr. Lax is more credible than the opinion of Dr. Kachadourian, and is further supported by the opinion of the claimant's neurosurgeon, Dr. Bajwa. The Board Panel majority notes, as argued by the carrier, that several of the claimant's medical reports after this case was reopened do not refer to an altered gait. The Board Panel majority finds that the claimant's most pressing medical issues when this case was reopened concerned the claimant's significant recurring right groin pain, while his chronic low back condition became more significant thereafter.

The carrier relies, in part, on the medical reports of Dr. Kim and Dr. Fanelli, in support of its contention that there is insufficient evidence that the claimant developed an altered gait due to his right inguinal hernia. Both Dr. Kim and Dr. Fanelli were seen by the claimant for a second opinion on whether he should have revision surgery for his right inguinal hernia. The Board Panel majority finds that the focus of the medical reports of both Dr. Kim and Dr. Fanelli concerned the question of whether further surgery should be performed to address the claimant's right groin pain, and the Board Panel majority finds that their medical reports have little bearing on whether he has a consequential low back injury.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports establishing this claim for a consequential injury to the claimant's low back.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 18, 2016, is AFFIRMED. No further action is planned by the Board at this time.