Case # G0182520
Date of Accident: 07/23/2009
District Office: Hempstead
Employer: Rivkin Radler LLP
Carrier: Continental Casualty Company
Carrier ID No.: W063002
Carrier Case No.: YLA88655C
Date of Filing of Decision: 06/22/2012
Claimant's Attorney: Stanton & Guzman, LLP
Panel: Robert E. Beloten

The Full Board, at its meeting held on April 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on April 13, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether the claim should be established for an occupational disease involving bilateral carpal tunnel syndrome; and
2. whether the claim should be established for an occupational disease involving the neck.

In a decision filed on March 31, 2010, the Workers' Compensation Law Judge (WCLJ) established the claim for occupational carpal tunnel syndrome, with a date of disablement of March 1, 2008, and discharged and removed Hartford Accident & Indemnity (Hartford) from notice.

The Board Panel majority modified the WCLJ's decision to rescind, without prejudice, the establishment of the claim for an occupational bilateral carpal tunnel syndrome, and to indicate that Hartford is to remain on notice. The Board Panel majority further found that December 20, 2000, is the proper date of disablement for claimant's occupational neck injury and therefore a claim for the neck is barred by Workers' Compensation Law (WCL) § 28.

The dissenting Board Panel member agreed with the Board Panel majority "that there is a lack of medical evidence at this time to establish a claim for bilateral carpal tunnel syndrome, in light of the negative EMG/NCV studies." However, the dissenting Board Panel member would have found a March 1, 2008, date of disablement for the neck claim.

On May 10, 2011, the claimant filed a request for Mandatory Full Board Review. Continental Casualty Company c/o CNA (CNA) filed a rebuttal on June 9, 2011.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This case, WCB Case #G0182520, was assembled as a result of a C-2 form filed by the employer on July 30, 2009, and a C-7 form that was filed by Hartford on August 5, 2009.

On August 13, 2009, the claimant filed a C-3 form to report that she was injured while working as a word processing supervisor for the employer. The claimant alleged that her injuries occurred from "[t]yping on a computer and answering the telephone for many years." The claimant described pain in her fingers and hands, up to her elbows, and into the left side of her neck and shoulder.

Another C-7 form was filed by CNA on August 13, 2009. On its C-7 form, CNA noted a date of injury of November 27, 2006, and the claim of injuries involving bilateral carpal tunnel syndrome, left neck and right hand, and third digit trigger finger. CNA objected to the claim for several reasons, including prima facie medical evidence, notice (WCL § 18), proper carrier, and timely filing (WCL § 28).

Dr. Facibene, the claimant's treating orthopedic physician, submitted a narrative report of an examination on July 23, 2009, and noted the claimant's chief complaint of bilateral hand and wrist pain with numbness and tingling. The claimant reported that she is a word processor and has had constant pain over the past two years radiating up both arms with a burning sensation into her left shoulder and at the base of her neck. Dr. Facibene noted that claimant had worked "in a word processing capacity" for the past 32 years, and that in her current job, for the past 18 years, she has worked between seven and eight hours per day using an ergonomic mouse and keyboard. "Even with these modifications and even with use of a brace at night, the patient has persistent and worsening symptoms." Dr. Facibene diagnosed neck pain; left cervical radiculopathy; bilateral carpal tunnel syndrome; bilateral flexor tenosynovitis of the wrists; right third trigger finger; tenosynovitis flexor tendons of the hand; and mild bilateral basal joint arthritis. Dr. Facibene opined that the diagnoses are causally related to the work history provided by the claimant. Dr. Facibene recommended EMG and NCV studies and an MRI of the cervical spine.

Dr. Mallin, the claimant's treating neurologist, submitted a C-4.0 report of an examination on August 12, 2009, in which he noted that the claimant was entering information into the computer and developed extreme pain in her neck, hands, arms, and elbows, with fingers locking. Dr. Mallin requested authorization for an MRI of the cervical spine, and EMG and NCV studies of the upper extremities.

The Board issued a notice on August 19, 2009, to inform the parties that WCB Case #G0183536 had been assembled with a date of accident of November 27, 2006. The carrier is listed as CNA. However, WCB Case #G0183536 was cancelled and combined with WCB Case #G0182520. CNA is listed as a party of interest on all notices that have been sent by the Board in WCB Case #G0182520.

CNA insured claimant's employer from May 1, 2006, to May 1, 2009. Hartford has insured claimant's employer since May 1, 2009.

In a notice dated September 1, 2009, the parties were notified that a pre-hearing conference was going to be held on September 22, 2009. In the notice, the Board directed that "[t]en days prior to the Pre-Hearing Conference, each party shall file with the Board a Pre-Hearing Conference Statement (Form PH-16.2)."

On September 8, 2009, Hartford filed a Pre-Hearing Conference Statement.

At the pre-hearing conference on September 22, 2009, the claimant and Hartford were present. However, CNA did not appear at the pre-hearing conference. The representative for Hartford requested the opportunity to cross-examine Dr. Mallin and Dr. Facibene.

In a decision filed on September 25, 2009, the WCLJ authorized an MRI of the cervical spine and EMG and NCV studies of the upper extremities, as requested by the claimant's treating physician, for diagnostic purposes. The WCLJ noted that CNA failed to submit a Pre-Hearing Conference Statement, and therefore has waived relative defenses, and also noted that Hartford has raised issues of coverage and WCL § 28, and had also requested the opportunity to cross-examine of the claimant's physician. The WCLJ continued the case to address the remaining issues.

Hartford filed an application for administrative review of the September 25, 2009, decision, and argued that the MRI should not have been authorized since the claim is not yet established.

On October 9, 2009, the Board received a Pre-Hearing Conference Statement from CNA. The defenses listed are prima facie medical evidence, accident and occupational disease arising out of and in the course of employment, WCL § 18, WCL § 28, and proper carrier. CNA alleged that Hartford was the carrier on the date of the accident/disablement.

The record reflects that the claimant had an MRI of the cervical spine done on October 2, 2009, and EMG and NCV studies were done on October 12, 2009, as authorized. However, prior to a Board Panel decision on Hartford's request for review of the issue of the MRI authorization, a hearing was held on October 13, 2009, and in a decision filed on October 19, 2009, the WCLJ disallowed the claim, finding that it is barred by WCL § 28.

The claimant filed an application for administrative review.

Dr. Mallin submitted a C-4.0 report of an examination on October 12, 2009, and noted that the results of the EMG and NCV studies were within normal limits. In the attached narrative report, Dr. Mallin noted that the studies provided no evidence of carpal tunnel syndrome or any focal neuropathy. The results of the EMG of the bilateral upper extremities were normal and are not consistent with a cervical radiculopathy or brachial plexus injury.

On October 14, 2009, the Board received the records of Dr. Zara, a chiropractor, who began treating the claimant in December of 2000 (see Document ID#179190964). In a note dated December 20, 2000, Dr. Zara wrote that due to claimant's "chronic neck pain and Carpal Tunnel Syndrome a headset and ergonomic keyboard is required to prevent further injury and or exacerbation."

In a decision filed on January 25, 2010, the Board Panel considered the claimant's application for review, as well as Hartford's application for review of the decision filed on September 25, 2009. In its decision, the Board Panel noted that the WCLJ authorized a cervical MRI without prejudice to determine whether the claimant's pain was emanating from her hands or her neck. The Board Panel found no basis to rescind the authorization for the MRI since it was made "without prejudice." Turning to the claimant's application for review, the Board Panel found that the WCLJ's decision to disallow the claim pursuant to WCL § 28 was premature and returned the case to the trial calendar for further development of the record on the issue of the date of disablement. The Board Panel noted that the WCLJ found the claim was barred by WCL § 28 without first making the necessary finding of a date of disablement. The Board Panel further found that "if the date of disablement is set at any time when CNA was the employer's carrier, it is barred from raising [WCL] § 28 because it did not timely file its PH-16.2 (12 NYCRR 300.38[f][4])."

At the hearing held on March 26, 2010, the claimant testified that she first lost time from work due to pain in either her neck or hands on March 1, 2008. She cut back her hours at that time. She worked no other Saturdays for that year. On July 23, 2009, she first saw Dr. Facibene about the pain she was having.

After the claimant's testimony, the parties provided oral summations. CNA argued that July 23, 2009, should be the date of disablement, based on the date of the claimant's first treatment with Dr. Facibene. CNA further argued that there is still an issue of causal relationship, and requested cross-examination of all doctors whose reports are in the file. The WCLJ denied the request.

The WCLJ then established the claim for occupational disease bilateral carpal tunnel syndrome, with a date of disablement of March 1, 2008. CNA objected to that finding. The WCLJ authorized an MRI of the cervical spine, without prejudice. The WCLJ's findings were set forth in a decision filed on March 31, 2010.

CNA filed an application for administrative review, arguing that there is no medical evidence to support a date of disablement of March 1, 2008, for the carpal tunnel syndrome claim, and that further development of the record is required on this issue. CNA asserted that the WCLJ improperly denied its request for cross-examination of the claimant's physicians. CNA further contended that if there is sufficient medical evidence to support the claim for an occupational disease involving the neck, the date of disablement should be found to be December 2000, and CNA was not the liable carrier for the employer on that date. In the alternative, CNA argued that July 23, 2009, should be the date of disablement and if such a finding is made, CNA should be discharged and removed from notice since Hartford was the liable carrier on that date.

LEGAL ANALYSIS

In her application for Mandatory Full Board Review, the claimant argues that the Board Panel improperly rescinded the establishment of the claim for an occupational bilateral carpal tunnel syndrome. The claimant also argues that the claim should be established for an occupational neck injury.

Carpal Tunnel Syndrome – Causal Relationship

Notwithstanding the fact that CNA has waived all defenses to the claim, the burden of establishing a causal relationship between employment and a disability rests with the claimant who must do so by competent medical evidence (Matter of Mitchell v New York City Transit Authority, 244 AD2d 723 [1997]).

Here, the claimant's treating physicians initially provided opinions of causal relationship in support of the claim for carpal tunnel syndrome. However, diagnostic studies were done which do not support those opinions.

Specifically, Dr. Mallin conducted EMG/NCV studies of the upper extremities and concluded that nerve conduction of the bilateral upper extremities was within normal limits and that there was no evidence of carpal tunnel syndrome or any focal neuropathy. Dr. Mallin also concluded that the studies were not consistent with cervical radiculopathy.

Therefore, the Full Board finds that there is insufficient evidence of causal relationship in the record to establish the claim for an occupational disease involving bilateral carpal tunnel syndrome at the present time.

Neck Claim

At the hearing held on March 26, 2010, the WCLJ made no findings with respect to the neck. In fact, there is no mention of this issue in the hearing transcript or in the WCLJ's decision filed on March 31, 2010. However, the Board Panel majority set the date of disablement for the neck as December 20, 2000, based on Dr. Zara's report of that date, and concluded that the claim was time barred pursuant to WCL § 28.

WCL § 42 gives the Board a degree of latitude when choosing the date of disablement in an occupational disease claim. Although WCL § 37 might appear to require that actual lost time from occur in order to set the date of disablement, the courts have made clear that lost time need not occur for an occupational disease claim to be established and a date of disablement set, allowing a claimant to receive medical treatment under the Workers' Compensation Law without suffering lost time (see Ryciak v Eastern Precision Resistor, 12 N.Y.2d 29 [1962]). "It is well settled that the fixing of the date of disablement is a factual question for the Board and the Board has 'some latitude in the choice of dates as long as its determination is founded on substantial evidence' (Matter of Scimeni v Welbilt Stove Co., 32 AD2d 364, 366; see Matter of Gude v Elm Coated Fabrics Div., 79 AD2d 786; Matter of Falcone v Western Elec. Co., 72 AD2d 644, lv denied 48 NY2d 612). In making this determination, the Board is not bound to select the earliest possible date of disablement nor is it required to give preference to certain events over others" (Bishop v St. Joe Minerals, 151 AD2d 917 [1989]).

The Board has been affirmed when it has selected as the date of disablement the date of first medical treatment (see Winn v Hudson Valley Equine Center, 215 AD2d 920, 626 NYS2d 978 [3rd Dept. 1995]), the date that a work-related condition was first diagnosed (see Hastings v Fairport Cent. Sch. Dist., 274 AD2d 660, 710 NYS2d 455 [3rd Dept. 2000]), the date of claimant's first causally related lost time (see Glasheen v New York State Dep't of State, 239 AD2d 792, 657 NYS2d 833 [3rd Dept. 1997]), and the date claimant permanently ceased working for the employer, even though he had previously had causally related lost time (see Cummings v Tenneco Chemicals Div., American Plastics, 53 AD2d 944, 385 NYS2d 419 [3rd Dept. 1976]).

In Cummings, the Third Department wrote:

Section 42 of the Workmen's Compensation Law gives the board the power to fix the date of disablement, and such a finding is factual in nature; the Ryciak decision in upholding a determination of the board which made the compensation carrier liable for medical payments incurred before the claimant had ceased work, broadened rather than restricted the power of the board to fix any date of disablement supported by the evidence where the spirit and purpose of the occupational disease provisions of the Workmen's Compensation Law would thereby be furthered.

(Cummings v Tenneco Chemicals Div., American Plastics, supra at 945).

"The Workers' Compensation Law was enacted for socioeconomic remediation purposes 'as a means of protecting work[ers] and their dependents from want in case of injury' on the job." Johannesen v New York City Dept. of Housing Preservation and Development, 84 NY2d 129 (1994), quoting Post v Burger & Gohlke, 216 NY 544 (1916). The one thread that runs through the occupational disease cases cited above is that the Board used its broad discretion in setting the date of disablement to ensure that benefits are payable to a claimant who sustains a causally related occupational disease, rather than to bar him or her from receiving benefits. In Cummings, the Third Department, in addressing the carrier's argument that the date of disablement should be set at a date which would result in the claim being barred pursuant to WCL §28, wrote:

It is pertinent to note that the Legislature has provided for measuring the timeliness of claims against the date of disablement rather than the date upon which an occupational disease is first contracted. A distinction is thus recognized between the initial contraction of a disease and the time when a claimant is first disabled from employment thereby. To hold that the present claimant is barred by limitations of time from filing a claim because she successfully attempted to continue to work as long as she possibly could would be clearly contrary to the spirit and intent of this benevolent legislation.

(Cummings v Tenneco Chemicals Div., American Plastics, supra.)

While Dr. Zara's December 20, 2000, note stated that due to claimant's "chronic neck pain and Carpal Tunnel Syndrome a headset and ergonomic keyboard is required to prevent further injury and or exacerbation," Dr. Zara's note did not provide a history of claimant's work duties nor indicate that claimant's neck and carpal tunnel syndrome conditions were causally related to her employment. That note merely indicated that her work might exacerbate those conditions.

The Full Board finds that the preponderance of the evidence in the record supports a date of disablement of no earlier than July 23, 2009, the date of Dr. Facibene's report which first diagnosed claimant with a neck injury which is causally related to her employment. Therefore, the claim for an occupational neck injury is not barred by WCL § 28. The case should be returned to the trial calendar for further development on the issue of whether claimant's neck condition is causally related to her employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on March 31, 2010, is MODIFIED to rescind the finding that claimant has occupational bilateral carpal tunnel syndrome, without prejudice, and to find that the date of disablement for claimant's neck injury is no earlier than July 23, 2009, and therefore that claim is timely. The case should be returned to the trial calendar for further development on the issue of whether claimant's neck condition is causally related to her employment.