AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION

The instant matter comes before the Court upon Petitioner’s Motion for Medical Treatment and Temporary Disability Benefits for a determination/ of the  extent of the compensable injury suffered by Petitioner,  DOMINICK PISCIOTTA, on June 25, 2007 while an employee of the Respondent and whether he is entitled to medical treatment and/or temporary disability benefits consequent to such injury.  For reasons more fully addressed below, this Court  declines to order the treatment sought by the Petitioner.

PROCEDURAL HISTORY

On September 11, 2007 the Petitioner filed Claim Petition 2007-24189, wherein it is alleged that he suffered “orthopedic & neurological/neuropsych” injury to his “back, hip, leg & right knee” as a consequence of  a work related injury when he “injured self in attempting to catch fall from chair that rolled away”  on June 25, 2007. He alleges that at the time he was employed by the Respondent as an “kitchen designer” and that he reported the injury to “Abdou Gueye.”  On November 28, 2007 the Respondent filed an Answer to the Claim Petition admitting employment and a compensable accident but denying the allegations as to nature and extent of the injury. 

On April 3, 2008 the Petitioner filed a Motion for Medical and Temporary Benefits seeking treatment to the lumbar spine and any temporary disability benefits necessitated by the same.  Respondent filed an Answering Statement on April 15, 2008 asserting that Petitioner was not entitled to such benefits, essentially claiming that there was no causal relationship between the June 25, 2007 fall and the lumbar complaints.

Trial was commenced on April 25, 2008.  

STIPULATIONS

The parties stipulated that the Petitioner was in the employ of the Respondent on June 25, 2007 and that he met with an accident on that date arising out of and in the course of that employment. Wages were stipulated to be $865.92 weekly and temporary disability and medical treatment was provided. The issue in dispute was agreed to be the necessity of further treatment and the causal relationship between the admitted accident and the injuries for which treatment is sought.

TESTIMONY

Petitioner Dominick Pisciotta testified that on June 25, 2007 he was employed by Respondent as a Kitchen Designer when, at about 10:30 or 11 AM, he fell to the floor  as a result of missing his chair while attempting to sit. He claimed that he struck his tailbone, back, hip and knee. He asserted that his “knee blew up immediately,” but he did not go to the Hospital until around 4 PM when he went to the Emergency Room at Palisades Medical Center. He claimed that he complained to the hospital personnel about pain to his back, his right hip and his right knee. He reported that x-rays were taken of the knee and it was placed in an immobilizer, following which he was sent home with advice to see his own orthopedic doctor.           

Petitioner testified that soon thereafter he was contacted by someone from “Sedgewick” claiming to be the insurance carrier for the Respondent. He was directed to see a Dr. Brief for examination and treatment, which he did on the 8th or 9th of July.  He claimed he told Dr. Brief he had complaints of pain in his low back, right hip and right knee.  He said Dr. Brief looked at the knee, “said that there was inflammation…probably a bad sprain and that pain in…[the] back and …[the] hip would be normal for someone falling, just probably a bruise.” He asserted that Brief told him to return to work that next Monday on full duty.  He said he complained to Sedgewick that he was dissatisfied with treatment and was ultimately referred to a Dr. Baruch in Cliffside.

Petitioner stated that when he saw Dr. Baruch he completed a two page form upon which he indicated that he had back and right leg pain, with severe pain in the right hip and back and moderate pain in his knee. He asserted that he personally completed the documents, marked as “P-1” and “P-2” in evidence, and that he knew Dr. Baruch was aware of the form because he saw it in his hand. He said Dr. Baruch gave him a thorough examination and told him they would treat the knee and take care of the back and hip if necessary at a later date.  He described a similar conversation with Dr. Baruch on a second occasion and claimed he was told that surgery on his knee would get him walking right and that would take care of the back and hip.

He testified that he had arthroscopic surgery to the knee performed by Dr. Corradino, due to Dr. Baruch’s unavailability, and that he complained to her about back and hip pain also and was told it was normal and might be bursitis.  He said Dr. Corradino gave him a shot in the right buttock, following his complaints of lower back, right hip pain and burning down the leg, and that she prescribed physical therapy for his back and hip.  He said he was unable to tolerate the physical therapy and that he complained to the therapist about his pain in the lower back and right hip. He asserted that Dr. Corradino recommended an EMG, which was performed by a Dr. Groves, and that he ultimately had an MRI done of his lower back and right hip.  He recalled Dr. Corradino recommended steroids and epidurals to treat his back and hip but that the carrier refused to authorize the back treatment.

Upon cross examination the Petitioner was presented with the records of his visit to Palisades Medical Center (“R-1”) and conceded that nothing in those records referenced any complaint or injury to the back or hip and that he only received treatment for the knee, none for the back or hip.  It  is also noted that the Triage record contained in R-1 indicates the patient complained of knee pain at level 9 of 10 and stated that he “accidentally jammed his R knee…”

Petitioner was thereupon presented with the record of his visit to Dr. Brief (“R-2”), and conceded that it also contained no reference to complaints concerning the back or hip.  He claimed Dr. Brief ignored his complaints about his back and hip and only examined his knee.

Upon further cross examination Petitioner was presented with a report from Dr. Baruch concerning a visit on July 16, 2007 (“R-3”) and conceded that there is no mention of back or hip complaints or injuries.  The report asserts that “the patient states that…he was trying to stop himself from falling off twisted his right knee area.” Petitioner also conceded that Dr. Baruch examined neither his hip nor his back.  He further conceded that records of a follow-up visit on July 23 (“R-4”) also made no reference to the back or hip and that Dr. Baruch examined neither body part.

Petitioner was next presented with notes of a visit on July 26, 2007 (“R-5”) and conceded that there is mention of complaints of hip pain but no indication concerning the back.  He was then presented with a report and notes of an August 3, 2007 visit (“R-6”) and conceded that it indicated physical therapy was stopped because it made the knee pain worse and that no mention is made of either the hip or the back.  He confirmed that he had arthroscopic surgery performed on his right knee on August 9, 2007 and that prior to that date he had no treatment to either his back or hip.

Petitioner conceded that following the surgery Dr. Corradino provided no treatment to his back but noted that she gave him a cortisone shot in his right hip (see “P-3” records for 9/11/07).   Upon reviewing records of an October 2, 2007 visit (“R-7”) Petitioner conceded that Dr. Corradino’s notes only address the right knee post-surgery and hip strain, but nothing concerning the back.  Upon reviewing records of a visit on October 30, 2007 (“R-8”) he conceded that treatment was recommended for the hip, not the back, and that his complaints involved pain in his right hip and running down his right leg.

The Petitioner next presented Dr. Arthur Tiger, who was qualified as an expert in orthopedics and orthopedic surgery.   He testified that he examined the Petitioner and reviewed records from Doctors Baruch and Corradino, the MRI report of 12/5/07, the EMG report of 12/20/07 and the report of Dr. Bernstein. He said that his examination was primarily focused on the low back, although he found tenderness over the right trochanteric region, the bony prominence of the hip. He opined that the Petitioner had suffered a serious injury to his low back and that that injury was causally related to the accident of June 25, 2007. He based his opinion on the Petitioner’s statements that he had pain in that area from the beginning, the intake diagram from Dr. Baruch’s office (“P-1 and 2”) and the petitioners assertion that he fell “directly on the lower back.”   Dr. Tiger was confronted with the same medical records presented to the Petitioner and conceded that there was no mention of back complaints or treatment, although he opined that hip complaints might be attributable to a back injury.

Respondent presented Dr. Adam Bernstein, who was qualified as an expert in orthopedics. He testified that he examined the petitioner and had an opportunity to review the medical records. He diagnosed lumbar radiculitis, but concluded that the back symptoms did not arise from the work related accident of June 25, 2007.  He based his conclusion on an absence of back complaints or symptoms immediately following the accident.  He opined that a traumatically induced radiculitis would have manifested much earlier and noted the absence of any reference to lumbar problems in the Emergency Room records, Dr. Brief’s records and Dr. Baruch’s records.  He was particularly emphatic that it would be highly unusual for the emergency room personnel to ignore a back complaint and fail to even note same.  He considered it highly unlikely that the Petitioner’s hip complaints were misdiagnosed back problems, noting the treating doctors diagnosis of greater trochantor bursitis and his agreement  with that conclusion.  On cross examination he restated his conclusion that if the July 25 accident had caused the back injury evidence of same would be expected within hours or days, certainly not months.

Respondent next presented Dr. Christine Corradino an Orthopedic surgeon and the Petitioner’s treating physician who took charge of the Petitioner’s treatment with an examination of August 3, 2007. Dr. Corradino confirmed that she had reviewed the file, including the notes of Dr. Baruch, who initially saw the Petitioner on July 16, 20007, and a two page patient completed form bearing that same date. She testified that she signed that document on August 3 and retained the original in the file. Upon request she produced the original, which was marked into evidence as “R-15” and “R-16” and reviewed by the Court and counsel on the record.  As to “R-15” the Court observed:

I note that what has been proffered as…Referencing for identification as R-15, the document just referred to by the witness as a pain drawing.  I note it is the same, appears to be virtually identical to a document previously entered as P-1 on April 25, 2008.  There are significant differences between R-15 and P-1, specifically the critical piece being a circle appearing on P-1 at the midline immediately above the buttocks to the right side being a circle and an X.  There is no marking in that same spot on R-15 and on the document marked P-1, there is a circle with an X in it over the right knee.  On the document marked as R-15 there is simply a circle without an X, they appear to be the only differences between the two documents and all other respects they seem to be identical at first glance with the exception of fax markings. 

As to “R-16” the Court observed:

I note that what has been identified a R-16, identified as an original document from the file by the witness appears to be an alter ego of what is already marked and admitted as P-2 on April 25, 2008.  I note the differences on P-2.  I am here to see the doctor for and circle all that apply. On P-2 back pain is circled and what appears to be a scrawl of H I P below that. That does not appear on R-16.  And a physician’s signature appears on R-16, a physician’s signature does not appear on P-2 which, if the witness’ testimony is that she signed R-16 on August the third.

Counsel were invited to add any commentary either disputing or supplementing the Court’s description and declined to do so.  Dr. Corradino specifically confirmed that she reviewed “R-15” and “R-16” on August 3, 2007 prior to initialing “R-16” and that she discussed Petitioner’s complaints with him and examined both knees, but neither the back nor the hip. She confirmed that she performed arthroscopic surgery on the Petitioner’s right knee on August 9, 2007.

            Dr. Corradino confirmed that she examined the Petitioner on August 17 as a follow–up to the surgery, at which time she removed the sutures and recommended physical therapy but provided no treatment to any other body part except the right knee.  She further confirmed that on September 11, 2007 she injected the petitioner’s right hip and recommended physical therapy to the right hip because of complaints of pain in that area. She testified that her examination of the hip led her to conclude that the Petitioner had tenderness along the greater trochanteric area, with a diagnosis of bursitis.

On October 2 the Petitioner continued to have hip complaints and Dr. Corradino testified that her examination included straight leg raises “to check for complaints of pain in the lumbosacral spine, mostly to the lower nerve roots extending down from L3 down to L4-L5 S-1.” She indicated that the results were negative, indicating there were “no signs of compression around the nerve roots of L3-L4, L5-S1.”  She asserted that her diagnosis was “right knee medial meniscus and right hip strain” and that she made no diagnosis involving the back.

Dr, Corradino testified that she next examined the petitioner on October 30, 2007 when he complained of “significant pain in the hip and going into the greater troch and down his leg.”  She testified that her examination showed tenderness into and along the greater trochanteric area, no point tenderness in the lumbosacral spine, mild tenderness in his right Sacral iliac joint, right buttock.  She opined that the Petitioner did not at that time have a spinal injury because if he had a back injury he would have had paraspinal muscle spasm or paraspinal muscle tenderness. 

Dr. Corradino’s opinion was that the spinal problems demonstrated in the MRI of the petitioner dated 12/5/07 were not causally related to the accident of June 25, 2007. She based this opinion on the lack of manifestation more contemporaneous to the accident, asserting that an acute herniated disc usually manifests symptoms immediately and certainly within four weeks of the trauma. In the Petitioner’s case he made no complaints attributable to the back until November 27, 2007 and the examinations of October 2 and October 30, 2007 showed an absence of lumbar symptoms.

On cross examination Dr. Corradino conceded that a twisting injury, such as that described by the Petitioner, could cause a herniated disk but insisted that  “it’s not the usual cause of a herniated disk.”  She also conceded that asymptomatic herniated disks were possible, but asserted that “almost all of the time if you have a herniated disk there’s midline tenderness or paraspinal muscle spasm.” Finally, she was asked if a progression of pathology was not both possible and reasonable in the circumstances presented. Her response was:

It's not a progression of the same pathology though, you're mixing apples and oranges, there's a progression of his knee pain, his hip bursitis secondary to his knee pain.  The bursitis could have occurred at the time of the injury.  I can't say one way or the other because it happened very close to the accident that he had the hip pain.  So that is a progression.  The back pain occurred in November according to our notes, so that's not a progression.  You don't progress from the knee to bursitis to a herniated disk.  I could tell you a hip, a knee, medial meniscus tear, physical therapy could progress to a bursitis.  I could relate those two.  I can't relate a miniscule tear, bursitis, say a herniated disk progressed from that.

Dr. Corradino also conceded that once the back complaints manifested in November she had requested authorization to treat the back from the Workers Compensation Insurance carrier.  She explained that a rejection from that carrier is a necessary prerequisite to allow the health insurance claim to be honored so the standard protocol is to make such a request and it does not imply any opinion or determination as to causation. Her opinion was that the hip bursitis was related to the work injury and the lumbar problems were not, primarily driven by the clinical examinations and the recording of the complaints over time.

            The next witness was James Kutscher, the Practice Administrator for Premier Orthopedics, the authorized treating facility of which Doctors Baruch and Corradino were members.  He was subpoenaed by the Petitioner, together with a complete copy of the Petitioner’s file, in order to address the issues surrounding the two versions of the same document, namely Exhibits “P-1 and 2” and “R-15 and 16,” and how the documents were maintained and provided to the parties.  Following two sessions of testimony and review of a hard copy of the entire electronic file a number of facts were elicited.  First, the material including “P-1 and 2” was part of a fax transmission from Premier to Sedgewick, the Third party Administrator for the insured, on November 16, 2007.  Secondly, Premier makes a regular practice of scanning all documents in the medical file into an electronic file maintained at their Cliffside Park office, as well as maintaining a paper file in the office where the patient was primarily seen.  Third, the electronic file does not now (or as of March of 2009 when Kutscher testified) contain any version of P-1, P-2, R-15 or R-16.  Fourth, there is no way to determine if any document was deleted from the file or whether the missing documents were ever scanned into the electronic file.  Fifth, access to the electronic file system is not limited, so a number of staff members at Premier have unrestricted access.  No explanation for the situation, beyond the foregoing, was provided.

            The final witness was the Petitioner, who denied any knowledge of the multiple versions of the documents or any relationship with any employee of Premier, except as related to his treatment or derived therefrom.  He confirmed that R-15 and R-16 contained his original signature and maintained that he specifically recalled designating the back as a source of problems on P-1 and P-2 prior to signing the documents.         

ARGUMENT

Petitioner contends that he complained of back pain consistently from the first interaction with medical personnel at the emergency room through his examinations by Dr. Brief, Dr. Baruch and Dr. Corradino.  He explains the lack of treatment to the back or reference to his complaints in the medical record as a consequence of focusing on the knee, that being the most obvious injury.  He further argues that references to hip pain in the medical record, first noted on July 26, 2007, are in fact misdiagnosed symptoms of lumbar pain and should be considered as complaints regarding the hip/back.  He asserts that he completed a two page form on July 16, 2007 indicating that he then had complaints of back pain (P-1 and P-2) and signed the form. He denies knowledge of the original documents lacking those references (R-15 and R-16) and claims entitlement to an “adverse inference” based upon spoliation of evidence, that being the failure of respondent to produce an original of P-1 or P-2 containing the markings on the fax copy introduced by Petitioner.

Respondent maintains that it is the Petitioner’s burden to establish a causal relationship between the work related accident and the lumbar complaints and that this petitioner has failed to meet that burden.  Respondent notes that the medical record is devoid of any complaints, symptoms or treatment involving the lumbar spine until November 27, 2007, five months after the June 25, 2007 accident.  Respondent argues that such an extended delay in the manifestation of lumbar symptoms negates the work related accident as the cause of any such injuries.  Respondent also asserts that the opinion of the treating doctor, Dr. Corradino, is entitled to greater weight consequent to her greater familiarity with the Petitioner.  Finally, respondent argues that the evidence supports a conclusion that Exhibits R-15 and R-16 constitute true copies of the medical file and P-1 and P-2 do not.

FINDINGS

The first issue to be determined is whether or not the Petitioner is entitled to an adverse inference as a consequence of the questions surrounding the patient completed forms and the two versions introduced as P-1 and R-15 and P-2 and R-16.  In that regard I do not find the petitioner’s testimony concerning the completion of the forms to be credible or consistent with the irrefutable facts.  Petitioner specifically and directly asserts that he personally completed the two forms, including denoting the back area on P-1 and circling “back” on P-2, after which he signed the documents.  A careful examination and comparison of P-1 with R-15 and P-2 with R-16 confirms that those markings common to each document set are identical, leading to a conclusion that P-1 is based upon a copy of R-15 and P-2 is based upon a copy of R-16.  Once that conclusion is reached it is clear that if the petitioner is to be believed no copy of R-15 or 16 should exist which contains Petitioner’s signature but no reference to back problems. Since such documents clearly do exist, I must conclude that the Petitioner signed the documents prior to the insertion of references to the back on both documents and he is not to be believed on that issue. This conclusion goes no further than necessary to warrant exclusion of P-1 and P-2 from consideration as a part of the medical file confirming complaints of back pain on July 16, 2007.  No further findings or determinations are made or implied.  Petitioner’s argument for adverse inference is rejected as unfounded, the Respondent having presented what is asserted to be the original documents by submission of R-15 and R-16 and I find Dr. Corradino’s testimony, that same were part of the medical records in her offices and that she signed same on August 3, 2007 after review, to be credible.  I decline, however, to accept R-15 and R-16 as proof that the Petitioner failed to assert any back or hip complaints on July 16, 2007. The lack of document controls, inability to track deletions from the digital file and absence of any version of the document from the digital records, taken together with the concession that P-1 and P-2 were faxed from the offices of Premier Orthopedics, cast sufficient doubt upon the documents to warrant exclusion of both versions from the consideration of this matter.

There is no real issue as to the nature of Petitioner’s present physical condition.  While there may be some dispute concerning the nature and extent of the injury there is a general consensus that the Petitioner has lumbar spine problems, including radiculitis, as well as greater trochanter bursitis to the right hip, in addition to the admittedly compensable right knee injury.  The issue is causation as to the hip and as to the lumbar spine.

As to the hip, there is no support for a position that the hip bursitis manifested in the Petitioner’s right hip is unrelated to the compensable accident.  Dr. Corradino concedes that the likelihood is that there is a relationship, although she does not go so far as to draw that conclusion.  I note that the first complaints of hip pain were within a month of the accident and credit the medical testimony that the progression is not unusual.  I therefore conclude that the Petitioner has met his burden of establishing a causal relationship between the right hip bursitis and the compensable accident of June 25, 2007.  There is no present request for treatment to the hip, although it is unclear whether the Respondent has accepted an obligation to provide the same.  This finding is made at this time to assure that if treatment for the hip is required in the future the Respondent is hereby deemed to be responsible for the same.

As to the lumbar spine, however, a different conclusion must be reached.  The medical records are totally devoid of reference to lumbar complaints until November 27, 2007.  The sole medical opinion relating the lumbar complaints to the June accident is that of Doctor Tiger, who relies upon the Petitioner’s assertions that he fell directly on his back and that he complained of back pain from the very first, starting in the emergency room.  When confronted with the lack of memorialization of the Petitioner’s complaints in the medical record Dr. Tiger is prepared to ascribe error to the medical personnel consequent to their concentrating on the more obvious knee injury.  Necessary to Dr. Tiger’s conclusion, however, is his belief that the back complaints were made within a relatively short time following the original event.

In contrast, Dr. Bernstein opines that it is unlikely that all of the medical personnel interacting with the Petitioner would have failed to note complaints of lumbar pain.  He found it particularly unlikely that emergency room personnel would fail to record a patients complaints of pain, since their training would dictate recordation of all such complaints without exception.  He also found it unlikely that all of the highly qualified orthopedic practitioners involved in the Petitioner’s treatment would have misdiagnosed lumbar complaints as hip bursitis.  Relying upon the medical record as an accurate representation of the sequence of events he concluded that the lumbar problems were unrelated to the work related fall.

The treating physician, Dr. Corradino, testified that she specifically examined the lumbar area on October 2, 2007 and October 31, 2007 in order to confirm the initial diagnosis of hip bursitis.  Her results were negative for lumbar pathology and consistent with hip bursitis.  She was a credible witness whose testimony was logically consistent and displayed a concern with treating the patient, rather than determining which insurance should cover what injury.  Her familiarity with the Petitioner, derived from multiple examinations and treatment over the course of more than four months, and credible demeanor lead to affording great weight to her testimony and opinions concerning the medical issues before the court.  It is noteworthy that Dr. Corradino was not willing to negate a causal relationship of the hip bursitis with the June accident but is willing to conclude that the lumbar problems are not so related.

A finding for the Petitioner in this matter would require the Court to conclude that the emergency room personnel and three orthopedic doctors chose to ignore assertions of back pain and failed to record those complaints.  It would further require the Court to conclude that Dr. Baruch and Dr. Corradino misdiagnosed lumbar complaints as hip bursitis, despite specific efforts by Dr. Corradino to determine if lumbar problems were present.  The Court simply declines to reach such conclusions.

The Petitioner’s testimony was simply neither consistent nor credible.  He asserts at one point that he complained of greater pain in his back than in his leg but argues that the medical personnel were distracted from noting his back complaints due to the seriousness of the knee injury.  He now describes the fall in a manner emphasizing back impact while the medical records record his assertion of a twisting of his leg while trying to avoid a fall. He claims that Dr. Baruch told him that his back and hip problems would go away in response to his complaints of back and hip pain but later concedes that Baruch never examined the back.  His testimony concerning the back is directly contradicted by the notations in the medical record without exception. I did not find him to be a credible witness and cannot credit his testimony contrary to the medical record.

The Court concludes that the petitioner has failed to carry his burden of establishing a causal relationship between the lumbar problems for which treatment is sought and the work related accident of June 25, 2007. I therefore decline to Order treatment or temporary disability benefits related to the lumbar injuries and deny the petitioner’s Motion for the same.  The Respondent shall bear the cost of the Court reporter and pay Global Court Reporting the total sum of $1,200 for eight sessions of testimony in this matter.

October 22, 2009                                                       

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                                                              KENNETH A. KOVALCIK, JWC