James Murphy v. A & M Pizza, Inc. d/b/a Domino's Pizza

Enployee: James Murphy, deceased

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For the reasons set forth in this award and decision, the Commission reverses the award of the administrative law judge.

In September 1999, employee suffered acute renal failure. While undergoing treatment for that condition, employee also suffered swelling and deep vein thromboses in both legs. A September 15, 1999, treatment record reveals a diagnosis of bilateral knee synovitis involving painful swelling of the knees. Doctors performed a procedure to drain fluid from his left knee. Later treatment records reveal a diagnosis of acute gouty arthritis in both knees. Employee underwent a kidney transplant in December 2000. On January 9, 2002, employee called his nephrologist, Dr. Wade Jordan, to report swelling in his left leg. Employee was advised to eat less salt and follow-up in a week.

Employee worked for employer as a pizza delivery driver. At some point in January 2002, employee stumbled on a broken piece of sidewalk while out delivering pizzas for employer. The appropriate date of this incident is a matter of contention between the parties. We find the emergency room records from St. John's Hospital persuasive as to the date of this incident. These records, dated January 14, 2002, suggest employee reported an injury occurring three days prior. This is consistent with a treatment note from employee's chiropractor dated January 11, 2002, which suggests employee complained of a broken toe on that date. We find that employee stumbled on the broken sidewalk during his shift on January 11, 2002.

The above-mentioned January 14, 2002, emergency room records from St. John's Hospital indicate that employee presented with a chief complaint of a left $2^{\text {nd }}$ toe injury and that employee was "uninjured above ankle." Transcript, page 2793. X-rays of employee's left toe suggested employee might have a non-displaced fracture. Employee's toes were buddy-taped, and he was released with instructions to follow up with his personal physicians as needed. The records make no mention of a left knee injury.

Employee went to Dr. Jordan's office on January 28, 2002. The notes from that visit indicate employee reported his recent left toe injury, and also that employee complained of some pain in his left knee after that injury, but does not record any traumatic injury to the left knee. On February 25, 2002, Dr. Jordan recorded that employee "fractured his great toe when he stumbled on the sidewalk, but otherwise has been feeling well." Transcript, page 3657. On March 22, 2002, employee called Dr. Jordan's office to report swelling in his left leg, and on March 25, 2002, a venous Doppler of the lower extremities was performed. No history of injury is recorded in the note associated with the Doppler study. The results of the Doppler study indicated possible bursitis of the left knee.

Dr. Marion Wolfe began treating employee for his left knee complaints in April 2002. Dr. Wolfe's initial treatment records reveal that employee complained of left knee swelling and pain, but indicate that employee provided no history of injury to the left knee. Rather, the notes record a four to five month history of a mass in the left knee. On April 26, 2002, Dr. Wolfe performed surgery to remove a synovial mass from the left knee. After the surgery, employee continued to have swelling of the left knee. Dr. Wolfe believed the mass would recur and have to be removed again. Dr. Wolfe couldn't identify a reason why employee had the proliferative mass in his left knee.

Dr. Wolfe removed a second left knee mass during surgery on August 29, 2002, and also performed an arthroscopic examination of the left knee with shaving of the articular cartilage of the medial femoral condyle. Dr. Wolfe's post-operative diagnosis was left knee synovitis with severe chondromalacia of the femoral condyle. The records from employee's follow-up treatment with Dr. Wolfe reveal the doctor's impression that employee would have long-term problems with the left knee secondary to osteoarthritis.

None of the records associated with either surgery suggest Dr. Wolfe found evidence of an acute left knee injury, nor do they relate any of employee's left knee problems to the accident in January 2002. After the second surgery, employee continued to complain of intermittent pain and swelling in the left knee. Dr. Wolfe's only treatment recommendation was to continue on anti-inflammatory medications.

Dr. Joseph Ritchie evaluated employee and provided his opinion on behalf of employer. Dr. Ritchie believes employee's left knee condition is a result of a pre-existing arthritic condition and that the January 2002 fall had no impact on the development of the osteoarthritic changes in employee's knee. Dr. Ritchie explained that a synovial mass is not a typical result of a fall or traumatic injury. Dr. Ritchie opined that none of employee's treatment for the left knee was related to the January 2002 accident. Dr. Keith Mankowitz also provided his expert testimony for employer. Although Dr. Mankowitz understood that employee "injured" his left knee in the January 2002 accident, Dr. Mankowitz believes that accident had no relationship to employee's subsequent knee problems. Dr. Mankowitz opined that employee's left knee problem was related to the inflammatory condition diagnosed in 1999.

Dr. P. Brent Koprivica provided his expert opinion for employee. Dr. Koprivica believes employee sustained a permanent aggravating injury to his left knee due to the January 2002 accident, which caused the synovitis and swelling. Dr. Truett Swaim also provided his expert opinion for employee. Dr. Swaim believes the accident of January 2002 caused employee to develop left knee synovitis and arthritis, or alternatively caused employee's preexisting arthritis to become symptomatic.

We must decide what injuries employee sustained in the accident of January 11, 2002. As we noted above, none of the contemporaneous treatment records contain a history of any traumatic left knee injury secondary to an accident in January 2002. The treatment record does reveal, on the other hand, that employee had complaints of pain and swelling and problems in his knees referable to synovitis and gouty arthritis before the accident. We acknowledge that employee, in his testimony, alleged that he did tell the treating doctors that he injured his left knee in the January 2002 fall, and that employee's wife testified she heard him tell the doctors that he injured his left knee during the emergency room visit at St. John's. We acknowledge that employee also testified that he had persistent swelling in his left knee following that accident.

We are not persuaded, however, that each of these treating physicians (and especially the treating surgeon, Dr. Wolfe) would fail to mention that employee provided a history of an acute injury to the left knee, especially when we consider the particular attention to employee's lower extremities following his synovitis, DVTs, and gouty arthritis conditions stemming back to 1999. We find it especially notable that Dr. Wolfe seemed perplexed

As to the cause of employee's proliferative synovium after the surgery in April 2002. Certainly if employee had told the doctor about his left knee injury, Dr. Wolfe would have mentioned it rather than to express that he was "at a loss" to explain the synovial mass. Transcript, page 3035. For these reasons, we find the testimony from employee and his wife lacking credibility on the question whether he injured his left knee in the January 2002 accident, and on the question whether employee told treating physicians about any such injury.

In rendering his opinion that employee sustained a left knee injury in the January 2002 accident, Dr. Swaim acknowledged that he was not aware of the actual specific mechanism of injury employee alleged as to the left knee, and he in fact didn't know whether employee was supposed to have twisted the knee, or fell on it directly, or whether employee caught himself when he fell. (Here, at least, Dr. Swaim seemed to acknowledge the lack of consistency in the varying accounts of the January 2002 accident-elsewhere, we note that the doctor seemed reluctant to entertain questions about the inconsistent treatment records). In Dr. Swaim's words: "All I know is there's an incident, there's knee pain, and it goes from there." Transcript, page 2010. In the context of this case, where medical causation of employee's left knee condition is the subject of considerable dispute, Dr. Swaim's lack of confidence as to the mechanism of injury makes it difficult for us to credit his causation opinion. Dr. Koprivica acknowledged that there was a "definite conflict" between what employee told him and the history of injury employee provided to Dr. Wolfe, and agreed that he found the contradiction "significant." Transcript, page 148.

After carefully reviewing the testimony from ea