A misunderstanding of a key fact can doom an expert opinion. 

John H. Geaney

That was the situation in V.S. v. Spectrum360 (June 24, 2024). The petitioner, a special education teacher, was working on July 26, 2021, when a student kicked her in her left breast. Petitioner felt pain, tenderness, extreme redness and blood clotting in her left breast.

A medical examination on the date of the incident was consistent with a contusion to the left breast. V.S. had undergone breast augmentation surgery in 2011. Since then, petitioner admitted that she had gained a “significant amount of weight,” which augmented her breast size. Petitioner’s board-certified plastic surgeon, Dr. Boris Volshteyn, suspected that V.S. “sustained a fracture of the silicone implant on the left side.” 

He sent her for a magnetic resonance imaging scan on Sept. 30, 2021. Volshteyn said the MRI “demonstrated significantly increased folding of the implant on the affected left side compared to the right side.” He attributed the changes in her left breast to the work incident and recommended reconstruction surgery and replacement of both implants to repair what he thought was a slow leak rupture of the left breast implant.

Petitioner filed a motion for medical treatment seeking breast reconstruction surgery. Respondent sent petitioner for a second opinion with Dr. Beverly Friedlander, a board-certified plastic surgeon. 

In a key distinction between the two plastic surgeons, Friedlander noted that petitioner did not have silicone implants, contrary to what Volshteyn had assumed. Rather, she had saline implants. She pointed out that if Volshteyn had been correct that petitioner had suffered a rupture or puncture of the left breast when kicked by the student, a deflation in the breast would have occurred rapidly with a saline implant. When a saline implant is compromised, she said, its contents will leak and reabsorb into the body quickly. But that had not happened in this case. Even petitioner agreed that there was no material difference in size after the accident between the left and right breasts. 

The experts also disagreed on the interpretation of the MRI results. The MRI of the left breast showed evidence of folds. Volshteyn attributed this to the work incident, arguing that the MRI demonstrated “significantly increased folding of the implant on the affected left side compared to the right side.”

Friedlander read the same MRI but did not notice in her examination any rippling in the left breast. She added that ripples in breast implants are quite common. She said that all breast implants ripple, and that if an implant is underfilled, the ripples are even more observable. In her opinion, one implant was inflated more than the other, leading to surface irregularities. She concluded that the folds shown on the MRI had nothing to do with the work injury.

The judge of compensation denied the petitioner’s motion, finding that Friedlander was more credible than petitioner’s expert. The Appellate Division affirmed the dismissal. It said, “The judge found Dr. Volshteyn erroneously believed V.S. had silicone — not saline — implants and that mistake regarding the composition of the implants undermined his overall opinion.”

The court felt that there was sufficient credible evidence for the judge of compensation to find Friedlander more credible in that petitioner’s left breast implant was intact and had not ruptured, contrary to the opinion of Volshteyn.

As for petitioner’s complaint of more pain in her left breast after the accident, the court noted that Friedlander had an explanation for this. Petitioner had chronic pain related to a 2007 motor vehicle accident as well as lupus/rheumatoid arthritis. Friedlander also said petitioner had a history of discomfort in both breasts related to her significant weight gain since the time of her 2011 augmentation.

John H. Geaney is an attorney, shareholder and co-chair of Capehart Scatchard's Workers' Compensation Group in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.