AP Renders Decision that Shoulder Injuries Require Expert Testimony
In an extent of injury case, the appeals panel has issued a decision that holds that the injuries of labral tear, partial intrasubstance tear, partial articular surface tear, and tendinosis of the infraspinatus tendon of the right shoulder require proof of causation using expert medical evidence. The appeals panel posted its decision in Appeals Panel Decision No. 151161 on August 24, 2015.
The claimant injured his right shoulder in the course and scope of his employment. The carrier disputed the extent of the claimed injury and the case moved forward to Contested Case Hearing. At the hearing, the claimant contended that the compensable injury extended to and included tendinosis of the supraspinatus tendon as well as a labral tear, partial intrasubstance tear, partial articular surface tear, and tendinosis of the infraspinatus tendon of the right shoulder. The hearing officer found that all of the disputed conditions were related to the compensable accident.
The hearing officer purported to rest his decision on the opinion of claimant’s doctor, whose opinion regarding causation predated the diagnostic test that identified the specific right shoulder diagnoses at issue. The appeals panel observed:
In evidence is Dr. M’s causation letter dated September 26, 2014, which describes the mechanism of injury and references an MRI of the right shoulder performed on October 2, 2013. Dr. M states “[t]he weight of the tire and the angle in which the patient was loading the tire caused the pain along with the need for surgical intervention. The MRI performed on 10/2/2013 showed distal supraspinatus tendonitis and mild bursitis. With the information provided and the physical examinations I have been able to obtain, it is my professional opinion the incident of (date of injury) is a plausible cause to the pain and disorder of the patient’s right shoulder.”
In evidence is an operative report dated October 10, 2014, from Dr. M, that states the claimant underwent a right shoulder “arthroscopy, subacromial decompression, bursectomy, and debridement of labrum.” An MRI of the right shoulder dated October 2, 2013, lists three impressions as follows: “1. Mild distal supraspinatus tendinosis. No evidence of partial or full-thickness rotator cuff tear. 2. Small amount of fluid in subacromial/subdeltoid space compatible with mild bursitis. No marrow edema or contusion. 3. Biceps anchor is intact. Mild hypertrophic changes in AC joint.” Also, an MRI of the right shoulder dated November 19, 2014, lists an impression of findings indicative of partial intrasubstance tear, partial articular surface tear, and tendinosis of the supraspinatus and infraspinatus tendons. We note Dr. M’s causation letter dated September 26, 2014, pre-dates the MRI of the right shoulder performed on November 19, 2014, which lists the extent-of-injury conditions in dispute in this case.
The panel held that the doctor’s opinion, which stated that the accident was a “plausible cause to the pain and disorder of the patient’s right shoulder” was insufficient to support the claim for most of the specific right shoulder conditions.
First, the appeals panel described the standard for determining whether expert testimony is required to extend an injury to another body part:
The Texas courts have long established the general rule that “expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience” of the fact finder. Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). The Appeals Panel has previously held that proof of causation must be established to a reasonable medical probability by expert evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection. Appeals Panel Decision (APD) 022301, decided October 23, 2002. See also City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.) citing Guevara.
Next, the appeals panel applied this standard to the evidence in the case:
The conditions of a labral tear, partial intrasubstance tear, partial articular surface tear, and tendinosis of the infraspinatus tendon of the right shoulder are conditions that are outside the common knowledge and experience of the fact finder, and as such requires expert medical evidence to establish causation. Although the diagnostic studies reference the extent-of-injury conditions in dispute, the medical records do not contain any explanation of how the compensable injury of (date of injury), caused a labral tear, partial intrasubstance tear, partial articular surface tear, and tendinosis of the infraspinatus tendon of the right shoulder. The hearing officer’s determination that the compensable injury of (date of injury), extends to a labral tear, partial intrasubstance tear, partial articular surface tear, and tendinosis of the infraspinatus tendon of the right shoulder is against the great weight and preponderance of the evidence.
The most important part of the appeals panel’s decision is what is implied by its decision. Implicit in the appeals panels’ decision is the holding that tendinosis of the supraspinatus tendon in the claimant’s right shoulder is a condition that does not require proof by expert evidence or testimony.
FOLIO
