AP Rules that Cause of Meniscal Tear Requires Expert Testimony
The appeals panel has issued a decision reversing a hearing officer’s determination that a claimant’s compensable injury extended to a right knee horizontal tear of the medial meniscus and rendered a new decision that the compensable injury does not extend to that condition. The appeals panel posted its decision in Appeals Panel Decision No. 150703 on June 9, 2015.
The claimant was employed as a hoof cutter at a slaughtering facility. He testified that he sustained an injury to his right knee when a carcass on the assembly line struck him on the right knee twice. The claimant underwent arthroscopic surgery to his right knee on November 8, 2013. The operative report dated that same day, showed the post-operative diagnoses as an inflamed hypertrophied lateral plica and hemosiderin deposits laterally in the area of the lateral collateral ligament. The operative report also detailed that the medial compartment revealed no significant evidence of degenerative changes, minimal fraying was noted of the posterior horn of the medial meniscus, and that the anterior and posterior cruciate ligaments and lateral meniscus were intact. There was no indication in the operative report that the claimant had sustained a horizontal tear of the medical meniscus.
A designated doctor examined the claimant on December 11, 2013, and certified that the claimant had not reached MMI, but would be expected to reach MMI on March 1, 2014. The designated doctor explained that the claimant was not at MMI because he had just begun post-operative rehabilitation and an examination showed that the claimant’s right knee had limited range of motion and swelling secondary to his surgical procedure. A post-operative MRI of the right knee was performed on March 19, 2014, which suggested the existence of an incomplete horizontal tear along the inferior articular surface in the posterior horn of the medial meniscus.
Relying upon the opinion of a peer review physician, the carrier contended that the horizontal tear of the posterior horn of the medial meniscus was a new, and unrelated, condition. A second designated doctor certified MMI an assigned a 2 percent whole body impairment rating. The carrier’s RME physician was appointed to address the reasonableness of health care. In responding to written questions, of whether there were any temporary or permanent restrictions for the claimant, and what further care, if any, would be reasonable and necessary per the ODG the RME physician stated:
With regard to the meniscal tear finding on the [post-operative] MRI of March 19, 2014, this incomplete tear may have been missed by [the surgeon] (even the very best arthroscopist available can occasionally miss an incomplete tear). . . . Similarly, even the best radiologist can over read an MRI occasionally such that an incomplete tear may not be present. It is more likely that an MRI in my opinion would be under read than over read, however.
The Benefit Contested Case Hearing Officer concluded that the meniscal tear was related to the compensable injury, writing:
If Claimant’s injury was limited to a contusion of the right knee, then conservative care should have resulted in improvement of that condition. Yet, Claimant very credibly testified that his right knee condition has not improved. This supports [the RME physician’s] opinion that the medial meniscus tear has been there all along and was overlooked during the arthroscopic examination.
The carrier challenged the hearing officer’s determination on appeal. The appeals panel first looked at the question whether a meniscus tear was the type of injury that required expert testimony to establish causation. The panel concluded that it was, writing:
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 Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). To be probative, expert testimony must be based on reasonable medical probability. City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.) citing Insurance Company of North America v. Meyers, 411 S.W.2d 710, 713 (Tex. 1966).
Next, the panel examined whether the RME physician’s opinion met the Guevara/ City of Laredo standard of causation. The panel concluded that it did not, writing:
Under the facts of this case, right knee horizontal tear of the medial meniscus is a condition that is a matter beyond common knowledge or experience and requires expert medical evidence. [The RME physician] did not explain how the compensable injury of [date of injury], extends to a right knee horizontal tear of the medial meniscus tear. [The RME physician] did not explain how the mechanism of injury caused a right knee horizontal tear of the medial meniscus tear. Rather [the RME physician] opined that the surgeon and radiologist may have missed identifying a medial meniscus tear during surgery and diagnostic studies and recommended another arthroscopic evaluation on the claimant’s right knee.
Explaining how a physician may have missed seeing a preexisting condition during surgery is not the same thing as describing how the compensable injury may have caused that condition. The appeals panel held that the claimant failed to prove causation and reversed the hearing officer’s extent of injury determination. Moreover, because there was no evidence of causation with respect to the meniscus tear, the appeals panel rendered a decision that the condition was not related.
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