Appellate Division finds that petitioner failed to sustain her burden of proving that her need for treatment was related to work incident, thus, denial of her motion for medical and temporary benefits was affirmed.

The petitioner appealed a workers’ compensation order denying her motion for medical and temporary benefits. By way of background, she worked as a teacher, and on July 6, 2021, a male student kicked her in her left breast. She had bilateral saline breast augmentation approximately 11 years prior, and she claimed the kick caused a significant injury. A medical examination on the same day revealed a contusion on the left breast and abrasions on both hands. 

The petitioner filed a workers’ compensation claim petition. Subsequently, in March 2022, she filed a motion for medical and temporary benefits, seeking breast reconstruction surgery based on a report from Dr. B. Volshteyn, her Board Certified plastic surgeon.

Dr. Volshteyn’s report noted the plaintiff should undergo breast reconstruction surgery and replacement of both breast implants to repair a suspected slow leak rupture of the left implant and due to increased pain in the back, neck and shoulder. The MRI revealed no evidence of implant rupture, but Dr. Volshteyn opined that he still had enough evidence to recommend the surgery. 

In response, the respondent sent the petitioner to Dr. B. Friedlander, also a Board Certified plastic surgeon. Dr. Friedlander opined there was no clinical evidence of a rupture and that saline implants would deflate quickly, unlike silicone implants.

The petitioner and the two surgeons testified. Dr. Volshteyn testified that he assumed the petitioner had silicone implants, but he learned shortly before his testimony that they were saline implants. He noted that if a saline implant is compromised, the contents would leak in a short amount of time. Dr. Friedlander testified that while the petitioner did sustain a left breast contusion, it was not the crucial cause of her need for surgery but, rather, her other conditions, including weight gain and Lupus. In addition, Dr. Friedlander noted the implants were intact with no evidence to the contrary.

On October 17, 2023, the workers’ compensation judge issued a decision, denying the petitioner’s motion for medical and temporary benefits. While she found all witnesses to be credible, the judge could not overlook Dr. Volshteyn’s assumption of a silicone versus saline implant. Also, she found Dr. Friedlander more credible as she relied on objective evidence, such as the MRI.

The petitioner appealed, arguing the judge’s decision was not based on credible evidence and misapplied the medical standard for the proposed treatment. Using the standard of substantial deference, the Appellate Division found the judge’s decision was supported by sufficient credible evidence. In addition, in response to the petitioner’s contention that she is entitled to treatment due to a combination of her co-morbidities and the work injury, the Appellate Division noted that Dr. Volshteyn could not testify with any certainty that the surgery would alleviate her pain. Also, the petitioner failed to provide any testimony in support of her argument. As such, she failed to sustain her burden of proving that her need for treatment was related to the work incident. Ultimately, the Appellate Division affirmed the denial of the petitioner’s motion for medical and temporary benefits. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 8, August 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}