Mark Cole v. Alan Wire Company, Inc.

15 to 20 inches. He took a step and heard a pop in his right knee, accompanied by immediate pain and swelling.

Employee had previously experienced issues with instability affecting his right knee, including buckling for several years, and even some unexpected falls owing to his knee giving out. He also experienced popping in his right knee prior to the forklift event on September 15, 2014. Employee had not sought any treatment for these conditions.

After suffering the pop, pain, and swelling in his knee at work on September 15, 2014, employee stopped working and went to the break room, where he put ice on his knee until going home for the night. Employee worked modified duty for employer on September 16, 2014, performing sweeping duties.

On September 17, 2014, employer sent employee to see Dr. Thomas Marsh, who took a history including employee's complaint of preexisting buckling, with falls, affecting both knees. At that time, Dr. Marsh diagnosed a right anterior medial line nodule, minimally symptomatic and without a history of direct trauma. Given employee's report of preexisting buckling causing falls, and the fact he was minimally symptomatic on that date and had a full range of motion of the right knee, Dr. Marsh determined employee's knee complaints were preexisting rather than traumatic/work-related, and recommended employee seek treatment on his own.

Employee sought medical care from the Veterans Administration. An MRI of September 29, 2014, revealed mild right knee patellofemoral compartment chondrosis; a focal area of increased signal in the anteromedial soft tissues of the right knee, likely a contusion; and a focal pocket of multiloculated fluid in the anteromedial aspect of the right knee just deep to the medial retinaculum, deemed by the radiologist to represent a possible ganglion cyst, as no definite communication with the remainder of the joint fluid was seen. On October 3, 2014, employee saw Dr. Cary Sanders, who diagnosed meniscal cysts based on the MRI findings, and recommended an arthroscopic surgery of the knee with excision of the cysts, which Dr. Sanders performed on October 27, 2014.

During the surgery, Dr. Sanders found and excised one small parameniscal cyst. Dr. Sanders also found that the ACL appeared to be intact, although there was some "stranding and thinning" of the ACL. Transcript, page 287. Dr. Sanders did not perform any surgical procedure to address this stranding and thinning of the ACL, nor did he surgically address any other condition of the right knee apart from the small parameniscal cyst that he excised.

Following the surgery, employee underwent a course of physical therapy, and Dr. Sanders kept him off work from October 27, 2014, through February 6, 2015, whereupon employee returned to his work for employer. Employee initially experienced a good result from the surgery, but suffered recurrent bouts of knee pain, for which he sought additional treatment in July 2015.

Currently, employee experiences pain in his right knee that reaches an occasional 5 to 6 out of 10 in severity; occasional swelling and stiffness; and trouble sleeping referable

to his right knee complaints. He seeks a temporary award reimbursing his past medical expenses, finding that he has not reached maximum medical improvement, and ordering employer to furnish additional medical treatment to him.

Employee advances the expert medical opinion of Dr. Dwight Woiteshek, who believes that employee's action of getting off the forklift was the prevailing factor causing employee to suffer traumatic internal derangement of the right knee in the form of stranding and thinning of the ACL, but that the parameniscal cyst excised during Dr. Sanders's surgery preexisted the forklift incident of September 2014. In his report, Dr. Woiteshek did not opine that the forklift incident caused the cyst (which he believed was "completely asymptomatic") to become symptomatic. And, at his deposition, he confirmed he did not believe the cyst (or excision thereof) was the source of employee's ongoing pain, and that the only medical condition he believed to have resulted from the forklift incident was the stranding and thinning of the ACL:

Q. So when you say internal derangement and ACL stranding and thinning, it's really just saying ACL stranding and thinning?

A. Yes, with clinical deficiency. His knee was giving out.

Q. Let me see what you say here. "Traumatic internal derangement of the knee with some stranding and thinning of the ACL." So you're-just so I understand completely, I'm not trying to take your words and spin them around or anything, the stranding and thinning of the ACL is what you're saying is the internal derangement that was caused by this work injury?

A. Yes.

Q. Okay. Anything else?

A. No.

Transcript, page 63-64.

Critically, though, Dr. Woiteshek erroneously believed that employee did not suffer from any preexisting instability or buckling in his right knee; in his report, he specifically noted this erroneous belief as underlying his opinion that the forklift incident was the prevailing factor causing thinning and stranding of the ACL in employee's right knee. But as employee admitted to Dr. Marsh and at the hearing (and as we have found above) employee did suffer from preexisting instability affecting his right knee, including buckling and falls, for years before the forklift incident occurred. In our view, any medical causation opinion premised upon a demonstrably incorrect version of the employee's preexisting complaints and history-especially that history specifically referable to the very same body part claimed to have been injured-would appear to lack adequate foundation.

**Injury No.: 14-069626**

Other circumstances detract from the persuasive value of Dr. Woiteshek's opinions in this case. For example, Dr. Woiteshek opined generally in his report that the disputed medical treatment that employee received from Dr. Sanders and the Veterans Administration was reasonably required to cure and relieve the effects of the injury—yet, he confirmed during his deposition his understanding that Dr. Sanders did not repair the ACL, i.e., the injury Dr. Woiteshek believes employee sustained. Also, during his deposition, it was revealed that Dr. Woiteshek believed employee had previously suffered left, but not right knee pain, which had prompted employee to undergo an MRI in August 2014. On cross-examination, though, it was pointed out to Dr. Woiteshek that this MRI was from another individual. Dr. Woiteshek failed to address the extent to which this error may have affected his opinions. Finally, Dr. Woiteshek believed (as set forth in his report) that employee had worked for employer for 27 years, but at his deposition, he conceded, when confronted with evidence to the contrary, that employee had actually worked for employer less than 1 year. Dr. Woiteshek was unable to explain where this erroneous information had come from.

After careful consideration, we find that Dr. Woiteshek's opinions fail to persuasively support employee's claim, primarily because they are premised on a demonstrably incorrect understanding of employee's preexisting complaints and history with regard to the right knee.

In addition to procuring the evaluation from Dr. Woiteshek, employee also sent a letter to Dr. Sanders, asking whether he believed that a "work related event was the 'prevailing factor' of any condition (injury or occupational disease) of the employee." Transcript, page 41 (emphasis in original). Dr. Sanders was evidently unwilling to go that far. Instead, he responded as follows:

> I do believe based on [employee's] history that the condition began arising from his workers compensation claim. His diagnosis was parameniscal cyst which could be a result of trauma sustained at that time. There was no tearing of the meniscus.

Transcript, page 43 (emphasis added).

Dr. Sanders did not address the prevailing factor standard at any point in his causation letter to employee. Nor did he identify the thinning and stranding of the ACL that he saw during his surgery as having any causal relationship to the forklift incident. Instead, he offered the opinion (directly contrary to that of Dr. Woiteshek) that the parameniscal cyst he excised could have been a result of trauma associated with employee's workers' compensation claim. Because his opinion regarding the alleged resulting medical condition caused by the forklift incident is directly contrary to that of employee's retained expert, and because, in any event, Dr. Sanders declined to address the appropriate statutory test (despite having been specifically directed to such by employee), we do not find his opinions to provide persuasive support for employee's claim.

We are wholly unpersuaded by Dr. Woiteshek's testimony, after having been confronted with his error as to employee's preexisting right knee complaints, that his opinions in this matter would not have been any different if he had been provided the correct information.

Employee: Mark Cole

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Employer, meanwhile, advances the expert medical opinion of Dr. Luke Choi, who believes that employee's step