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Case # G1057399
Date of Accident: 02/13/2012
District Office: Buffalo
Employer: SUNY Fredonia
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 68039700
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Fine, Olin & Anderman PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 1, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether there is sufficient medical evidence to support a causally related total left knee replacement.

The Workers' Compensation Law Judge (WCLJ) found sufficient evidence of causal relationship to authorize total left knee replacement surgery.

The Board Panel majority agreed and affirmed the WCLJ.

The dissenting Board Panel member would find that the claimant's need for a total left knee replacement is not causally related to the injury of this file.

The carrier filed an application for Mandatory Full Board Review on February 28, 2017, arguing that the medical evidence supports the conclusion that the claimant's contusion resolved, as expected by her own doctor, and that the claimant's knee replacement surgery is not related to the work accident.

The claimant filed a rebuttal on March 20, 2017, arguing that the decision of the Board Panel majority is supported by the record and no error of fact or law has been made.

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

FACTS

The case is established for a contusion to the left knee (without prejudice), resulting from a work-related accident on February 13, 2012. The claimant's average weekly wage (AWW) was set as $754.84. The claimant also has a prior workers' compensation claim, WCB Case # 80802841, involving injuries to the right knee and ankles stemming from a work-related accident in 2008.

In an EC-4NARR (Doctor's Narrative Report) dated May 16, 2012, for an examination on May 1, 2012, the claimant's treating physician, Dr. Fitzgerald, reported that the claimant injured her left knee and left ankle as a result of tripping over a book in a darkened room. Upon examination, the doctor noted that the claimant walked with a limp. Evaluation of the left leg revealed good range of motion of her hip, knee, and ankle with no effusion or obvious malalignment. Dr. Fitzgerald diagnosed a contusion of the left knee and ankle, noting that the injuries aggravated the claimant's arthritis. The doctor further noted that he expected the claimant to improve and that she was not disabled from her job at that time.

The claimant did not seek treatment again for the left knee until August 26, 2014. In a series of medical reports covering the period of August 26, 2014, to June 16, 2015, Dr. Fitzgerald noted that the claimant had degenerative arthritis of both knees with increased pain in the left knee. In a June 16, 2015, medical narrative, the doctor examined the claimant and found an obvious varus with 1-2+ effusion with grinding and crepitance of the left knee. Dr. Fitzgerald diagnosed medial compartment arthritis and a fixed varus deformity of the left knee. The doctor indicated that he was requesting authorization to perform a causally related left total knee replacement. The doctor also noted that the claimant was not disabled at that time.

At a hearing held on October 14, 2015, the claimant testified that she was injured in the archives room of the library at SUNY Fredonia when she tripped over a book and fell forward, twisting her left knee and ankle. The claimant denied having any prior injuries to the left knee, but did state that she experienced "a little pain here and there" prior to the accident, which she attributed to pre-existing arthritis (Hearing Transcript, 10/14/15, p. 10). She had treated with Dr. Fitzgerald on and off since 2008 for the established injuries of her other workers' compensation claim, but she first sought treatment for the left knee in May 2012. It was at that time that Dr. Fitzgerald advised her that her left knee was eventually going to need a replacement like her right knee did. She took her regular service retirement on April 30, 2015, due to the pain in her left knee and right ankle, which had worsened since the time she saw Dr. Fitzgerald in May 2012. In June 2015, Dr. Fitzgerald advised her that it was time for left knee replacement surgery and requested authorization. The claimant denied having any lost time from the date of the accident to her retirement. On cross-examination, the claimant could not recall receiving any specific treatment for her left knee issues from May 2012 until June 2015, but she did state that she treated with Dr. Fitzgerald for her ankle issue during that period and made the doctor aware of the increasing pain developing in her left knee.

In an IME-4 (Independent Examiner's Report of Independent Medical Examination) report for an examination on November 5, 2015, the carrier's consultant, Dr. Bauer, noted that the claimant, 61 years old at the time of the examination, presented with injuries to her left knee and left ankle. Upon examination, the doctor found no synovitis or effusion of the left knee. Left knee range of motion was found to be 0-110 degrees. There was no crepitation with range of motion and no ligamentous laxity. With extremes of motion, there was slight discomfort in the medial joint of the left knee. The doctor also noted slight irritability in the medial joint of the left knee upon performance of the McMurry's test. Dr. Bauer diagnosed left knee osteoarthritis. He noted that after reviewing the claimant's medical history, his opinion was that the claimant's left knee condition was not causally related to the accident of record. The doctor further opined that the left knee condition was idiopathic in nature and progressive over the years. While the surgery requested for the knee would be medically indicated, it was not causally related.

Deposition testimony of Dr. Fitzgerald was taken on February 2, 2016. Dr. Fitzgerald testified that he first treated the claimant for her left knee on May 1, 2012. The doctor diagnosed a contusion of the left knee and ankle, which he noted had aggravated the claimant's underlying arthritis. The claimant's injury was treated symptomatically. The doctor indicated that he had also treated the claimant for her right knee and performed a right knee replacement prior to that date. He treated the claimant again for the left knee on August 26, 2014. The doctor indicated that the claimant had degenerative arthritis of both knees and was having increased pain on the left. The doctor's impression at that time was degenerative arthritis of the left knee, which he treated with injections. Dr. Fitzgerald next saw the claimant on June 16, 2015, and requested authorization for a left total knee replacement, noting that the claimant's longstanding degenerative arthritis of her left knee had been aggravated by work. The doctor opined that the need for left knee replacement surgery was causally related to her work accident in that the fall aggravated her pre-existing arthritis and exacerbated her pain.

On cross-examination, Dr. Fitzgerald testified that he treated the claimant for her left knee issue on the following dates: May 1, 2012; August 26, 2014; September 30, 2014; January 22, 2015; and June 16, 2015. The doctor acknowledged that he did not see the claimant for over two years after the initial visit. Dr. Fitzgerald indicated that treatment during the initial visit included local measures including Ibuprofen and increased activity as tolerated; physical therapy and surgery were not considered at that time. When asked if he inquired why the claimant did not seek treatment at all from 2012 to 2014, Dr. Fitzgerald testified that he assumed that her knee pain did not warrant treatment during that period. In opining that the total left knee replacement was causally related to the claimant's contused knee, the doctor stated that the claimant informed him that her pain gradually worsened over the years, which he again attributed to the fall aggravating her underlying arthritic condition. Dr. Fitzgerald conceded that since he did not see the claimant from 2012 to 2014, he did not know if her pain ever ceased from the initial visit. He also acknowledged that the claimant being morbidly obese at 276 pounds was a factor related to her left knee issue, stating that "I think it is a reason, I don't know what is the main reason, it certainly is a reason." (Deposition, Dr. Fitzgerald, 2/2/16, p. 11). The doctor reiterated that he felt the fall represented an aggravation of her pre-existing condition as the claimant stated she did not have any symptoms prior to the fall and experienced pain in the knee after the accident.

Deposition testimony of Dr. Bauer was taken on February 18, 2016. Dr. Bauer testified in accordance with his findings from the November 5, 2015, examination of the claimant and his corresponding IME-4 report. The doctor indicated that the claimant had a degenerative arthritic condition based on his review of her medical records and symptoms at the time, and, while not causally related to the claimant's work accident, he agreed that total knee replacement on the left side was indicated. The doctor testified that although he did not know the condition of the claimant's left knee prior to the injury and could not approximate how the claimant's arthritic condition progressed since her accident, it was his opinion that the accident did not contribute to her need for surgery. Dr. Bauer explained that the claimant's contusion did not seem to be serious, as the claimant did not seek treatment for the injury until several months after the accident, and did not miss any work because of the injury. Dr. Bauer further noted that Dr. Fitzgerald did not even perform an X-ray at that stage when he examined her in May 2015, suggesting that the injury was not serious.

In a reserved decision filed on April 26, 2016, the WCLJ found that the requested left knee replacement surgery was causally related to the claimant's injury of February 13, 2012. In reaching his decision, the WCLJ cited the testimony of Dr. Fitzgerald indicating that the claimant had no prior treatment to the left knee and that the work accident was a factor in the aggravating and progressive worsening of the claimant's left knee. As such, total left knee replacement surgery was authorized. As there was evidence of an asymptomatic pre-existing condition, the WCLJ noted that any issues of apportionment were reserved pending a finding of permanency. The WCLJ decision was subsequently amended on April 26, 2016, and again on May 2, 2016, to note that no further action will be taken by the Board at this time.

The carrier filed an application for administrative review on May 24, 2016, arguing that there is insufficient evidence that the claimant's need for total left knee replacement is causally related to the injury of this file, as the claimant suffers from pre-existing arthritis and Dr. Fitzgerald admitted that obesity also contributed to her need for surgery.

The claimant filed a rebuttal on June 23, 2016, arguing that the WCLJ's finding of causally related left knee replacement is supported by Dr. Fitzgerald's credible opinion.

LEGAL ANALYSIS

"[I]t is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

"'It is well settled that the Board is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference, particularly with respect to issues of causation' (Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823 [2004]; see Matter of Joyce v United Food & Commercial Workers Local 342-50, 307 AD2d 552 [2003])" (Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 [2006]).

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 treated for her injury only one time on May 1, 2012. On that date, Dr. Fitzgerald diagnosed a contusion that he noted had aggravated the claimant's pre-existing arthritis. It is significant to note that the doctor found no evidence of a disability from the contusion sustained in the work accident and stated that the claimant was eventually going to need knee surgery due to the degenerative arthritis in her left knee. The claimant did not seek further treatment for her knee until over two years later on August 26, 2014. There is no medical evidence for over a two-year period between the claimant's initial treatment and her visit of August 26, 2014, that finds an ongoing disability.

Dr. Fitzgerald testified that he believed the need for surgery was causally related because the claimant's pain had worsened and that the claimant did not have symptoms prior to the accident. Dr. Fitzgerald's opinion of causal relationship is problematic in two ways. First, there is nothing in the medical evidence covering the two year period after the claimant's initial treatment that illustrates her worsening pain in her left knee. Rather, Dr. Fitzgerald conceded in his testimony that he was unaware of whether the claimant's pain ever ceased during that time and was relying on what the claimant told him during the August 26, 2014, visit. Second, his statement that the claimant did not have any symptoms prior to the accident is inaccurate as the claimant admitted in her testimony that she experienced pain in her left knee prior to the work accident. The claimant did not seek treatment for the injury until several months after the accident occurred, and did not miss any work because of the injury. Dr. Bauer credibly found that the left knee condition idiopathic in nature and progressive over the years, which suggests that, while the degenerative changes may have been temporarily aggravated by the work accident, the claimant sustained only a minor contusion and returned to status quo ante following the accident.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant's need for total left knee replacement surgery is not causally related to the injury sustained in the work accident of February 13, 2012.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on April 26, 2016, and amended on April 26, 2016, and May 2, 2016, is MODIFIED to find that claimant's need for total left knee replacement surgery is not causally related to the injury sustained in the work accident of February 13, 2012, and is not authorized. No further action is planned by the Board at this time.