The Full Board, at its meeting held on December 18, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision duly filed and served on April 6, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) found that the claim was not time-barred and established the case for an occupational disease involving carpal tunnel syndrome, setting the date of disablement as March 3, 2011, the date of diagnosis with a statement of causal relationship.
The Board Panel majority affirmed the WCLJ's decision.
The dissenting Board Panel member would find the claim is time-barred by WCL § 28 on the basis that the claimant's first lost time for her left wrist complaints was in June 2004. By virtue thereof, the dissenting panelist would set the date of disablement as June 3, 2004. The dissenting panelist further believes that the claimant knew or should have known on June 3, 2004, that her left wrist condition was work related.
On May 2, 2012, the carrier filed an application for Mandatory Full Board Review, arguing that the claimant had knowledge of the condition and was disabled thereby as early as June 2004. The carrier therefore requests that the claim be disallowed pursuant to WCL § § 28 and 45.
On May 8, 2012, the claimant filed a rebuttal, arguing that there was no opinion given by any physician that the carpal tunnel syndrome was work related until the C-4.0 report of Dr. Orlando of March 3, 2011, and therefore the claim was timely filed on March 25, 2011.
On May 17, 2012, the carrier filed a reply asserting that the claimant's credibility is in question given that she filed a claim with her employer in December 2010, before Dr. Orlando's diagnosis.
On May 21, 2012, the claimant filed a sur-reply indicating that the carrier has mischaracterized the claimant's testimony, and that the claimant testified that at the time she reported her condition to the employer, she felt that her condition may be work-related.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On March 25, 2011, the claimant, then a 54 year-old dental assistant, filed a C-3 (Employee Claim) noting pain and numbness in both of her wrists, attributable to "repetitive motion, over time."
A C-2 (Employer's Report of Work-Related Injury/Illness) was filed by the employer on December 24, 2010.
By C-4 report dated March 3, 2011, and filed on March 4, 2011, the claimant's treating physician, Dr. Orlando, indicated that:
"Patient presents for numbness and pain of the hands bilaterally. Has worn a splint for the left only since 2004 at night, but does not help for a while. Patient is right-handed. Works…as a dental assistant…for 21 years. The work environment involves using hand tools and repetitive motion with fine motor skills. The symptom is work related. *** This patient has long-standing bilateral CTS."
By C-4 Auth filed on March 4, 2011, Dr. Orlando requested authorization for left carpal/ ulnar tunnel release and right carpal tunnel release surgeries.
On March 8, 2011, the carrier filed a form C-7 wherein it controverted the claim on numerous grounds, including that the claim is time-barred by WCL § 28 as medical evidence exists which indicates the claimant experienced left wrist problems as early as 1998 and that she had both medical treatment for that condition and first lost time in or around June 2004. The carrier further noted that while they did not contain a specific statement causally relating the claimant's symptoms to her work, that reports from June 24, 1999 and June 3, 2004, mention work activity.
In an IME report filed on May 11, 2011, the carrier's consultant, Dr. Hausmann, found the claimant to have causally related bilateral carpal tunnel syndrome, in addition to noting evidence of ulnar nerve compression. Dr. Hausmann recommended surgery "due to the failure of non-operative treatment."
The carrier filed copies of the claimant's medical records from 1998, 1999 and 2004. The reports from 1998 (Basset Healthcare, Brian Hall, Registered Physician's Assistant) mention that the claimant complained of problems with her left wrist. The diagnoses in those reports indicate "tendonitis" and possible "rheumatory arthritis." In a report dated June 24, 1999, RPA Hall indicated that the claimant's left hand numbness "seems to be worse when she wakes up in the morning…and can occur at other times such as working, driving, reading, etc…she does use her hand at work all the time; she works as a dental assistant." RPA Hall assessed "left carpal tunnel syndrome" and recommended that the claimant wear a wrist splint on her left wrist at night. In a follow-up report dated August 3, 1999, RPA Hall indicated that the claimant's left carpal tunnel syndrome had improved, but that she was experiencing hair loss. The claimant mentioned a family history of thyroid disease. RPA Hall ordered blood work to rule out hypothyroidism. The next progress note from RPA Hall is dated June 3, 2004, wherein he indicated that the claimant complains of "1-2 weeks of left wrist pain, down into her left thumb…she works as dental hygienist, is using a lot of instruments…when she does that she has to use the pincer grip and she thinks that's aggravating her hand…she's a lot more busy at work than she had been in the past." RPA Hall assessed the claimant with "tendonitis, left wrist, probably DeQuervain's." RPA Hall gave the claimant a thumb spica splint and pain medication and advised the claimant to ice her wrist and stay out of work for three days.
The claimant returned to Bassett Healthcare on December 9, 2010, where she presented with progressively worse left hand numbness and pain. The history further indicates that the claimant works as a dental hygienist and uses her left hand for everything, to hand instruments to the dentist, etc." RPA Hall indicates that upon examination of the extremities, the claimant had positive Tinel's of the left wrist. The diagnosis indicates left carpal tunnel syndrome. RPA Hall ordered an EMG. An EMG dated December 13, 2010, confirmed the existence of left carpal tunnel syndrome (severe) and the existence of right moderate carpal tunnel syndrome.
The claimant testified at the hearing on May 12, 2011, that she has worked for the employer as a dental assistant since 1996, and that her job duties, which consisted of heavy use of her hands and fingers (i.e., assisting the dentist, using small instruments, unpacking instruments), to date have been consistent. She spoke to her supervisor about her condition on December 14, 2010, the day after her EMG test came back positive. She told her that her hands had been bothering her, that she had an EMG, and that her doctor indicated she might have to have surgery. Her supervisor handed her an accident report entitled "Staff injury/Accident Report." The claimant completed the report and signed it as did her supervisor. The claimant indicated that is how she informed her employer that she felt she had causally related carpal tunnel syndrome. (Hearing transcript, 5/12/11, pp. 11-12). She testified further that on December 14, 2010, she did not think her symptoms were caused by her work, and did not know the cause. (Hearing transcript, 5/12/11, p. 14). Prior to the time she saw Dr. Orlando on March 3, 2011, no doctor had told her that her wrist complaints were related to her work. (Hearing transcript, 5/12/11, p. 12). The claimant did not recall losing three days from work in June 2004 because of her wrist symptoms. She used the splint and iced her wrist, as recommended by her RPA, which helped her symptoms. When she first treated for her wrist symptoms in 1998 and 1999, RPA Hall told her that the cause was due to overworked hands. (Hearing transcript, 5/12/11, p. 18). When she returned to RPA Hall for treatment in June 2004, she had no idea if her work activities were causing the symptoms, but indicated that her work was aggravating her symptoms. (Hearing transcript, 5/12/11, p. 19).
In a decision filed May 17, 2011, the WCLJ established the case for an occupational disease involving bilateral carpal tunnel syndrome, set the date of disablement as March 3, 2011 "based on first diagnosis with statement of causal relation," set the average weekly wage, found no compensable lost time and authorized carpal tunnel release.
Date of Disablement
"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." Matter of Bishop v St. Joe Minerals, 151 AD2d 917 .
The Board has been affirmed when it has selected the date of disablement as the date of first medical treatment (see Winn v Hudson Valley Equine Center, 215 AD2d 920 ), the date that a work-related condition was first diagnosed (see Hastings v Fairport Cent. Sch. Dist., 274 AD2d 660, 710 ), the date of claimant's first causally related lost time (see Glasheen v New York State Dep't of State, 239 AD2d 792 ), 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 ).
Here, the claimant testified that she worked without interruption and without a diagnosis attributing her condition to her work as a dental assistant until an evaluation by Dr. Orlando on March 3, 2011. While the medical reports from 1998, 1999 and 2004 recount a history of numbness and pain in the claimant's left wrist, and mention work activity, none of the reports provide explicit indication of a causal relationship to the claimant's work. In the medical report from RPA Hall dated June 3, 2004, wherein he assessed that the claimant had "tendonitis, left wrist; probably De Quervain's," the report discusses the fact that the claimant uses the "pincer grip" at work and [claimant] thinks that is aggravating her hand. The report further indicates that RPA Hall gave the claimant a note to stay out of work until June 7, 2004. However, this report does not establish a definitive link between the claimant's work and the cause of her condition. If anything, in the report, RPA Hall is querying the possibilities of the cause of the claimant's wrist pain just as he did in the August 3, 1999, report that discusses hypothyroidism, a condition which may cause carpal tunnel syndrome. As to the note to stay out of work until June 7, 2004, this can be viewed merely as a recommendation given that the claimant felt that gripping the instruments at work was "aggravating" her hand. Moreover, the claimant testified that she did not recall losing three days from work in June 2004 because of her wrist symptoms.
Accordingly, the preponderance of the evidence in the record supports setting the date of disablement as March 3, 2011, the date of the first medical report finding a clear causal relationship between claimant's condition and her employment.
Pursuant to WCL § 28, the right to claim compensation for an occupational disease is not time barred if the claim is filed no more than two years after the date of disablement and after the claimant knew or should have known that the disease is or was caused by the employment (Matter of Patterson v Long Is. Jewish Med. Ctr., 296 AD2d 774 ; Matter of Coursey v Applied Minds, Inc., 13 AD3d 865 ; Matter of Jex v Albion Corr. Facility, 4 AD3d 574 ).
Even assuming that claimant knew or should have knew that her condition was work related prior to March 3, 2011, insofar as the claim was filed within two years of the date of disablement, it is timely.
WCL § 45 provides that the "requirements as to notice as to occupational disease and death resulting therefrom shall be the same as required in section eighteen of this chapter, except that the notice shall be given to the employer within two years after the disablement or after the claimant knew or should have known that the disease is due to the nature of the employment, whichever is the later date." Insofar as the employer had actual notice of claimant's injury within two years of the date of disablement, that notice was timely.
Based upon a review of the record and the preponderance of the credible evidence, the Full Board finds that the date of disablement is March 3, 2011, the date of the first medical report finding a clear causal relationship between claimant's condition and her employment; and that the claim was timely filed on March 25, 2011, within the two year limitation period set forth in WCL § 28; and that timely notice was provided pursuant to WCL § 45.
Accordingly, the WCLJ decision filed on May 17, 2011, is AFFIRMED. No further action is planned at this time.