The Full Board, at its meeting held on June 19, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 15, 2011.
The issue presented for Mandatory Full Board Review is whether the claim should be amended to include consequential depression.
In a reserved decision filed on November 19, 2010, the Workers' Compensation Law Judge (WCLJ) disallowed the claim for consequential depression.
In a Memorandum of Decision filed September 15, 2011, the Board Panel majority affirmed the WCLJ's decision, finding that the claimant's depression is unrelated to her occupational disease.
The dissenting Board Panel member would establish the claim for consequential depression.
In her application for Mandatory Full Board Review filed on October 17, 2011, the claimant argues that the decision of the Board Panel majority should be reversed because the WCLJ's decision "was based on a misrepresentation of the facts and medical evidence."
In a rebuttal filed with the Board on October 24, 2011, the attorneys for the Group Self-Insured Trust (GSIT) request that the Board Panel majority decision be affirmed because the evidence does not support amending the claim to include consequential depression.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This case is established for an occupational disease involving bilateral carpal tunnel syndrome and bilateral trigger fingers, caused by claimant's employment in a nursing home. December 13, 2008, is the date of disablement based on the date of first treatment. According to Form C-11 filed by the employer, claimant stopped working on January 20, 2009. The claimant had surgery on December 3, 2009 (left open carpal tunnel release), and on January 28, 2010 (a right open carpal tunnel release).
No awards were made for the period prior to March 17, 2009, based on the lack of medical evidence of a causally related disability. Awards were made from March 17, 2009, to April 2, 2010, at the total disability rate.
Dr. Murphy, the claimant's treating orthopedist, submitted an EC-4NARR report of an examination on April 2, 2010, and opined that the claimant has a 0% temporary impairment. In the attached notes, Dr. Murphy opined that the claimant is out of work "for other health issues, depression but as far as the carpal tunnel goes [she can] return to work activities." Based on Dr. Murphy's report, claimant was found to have no further compensable lost time after April 2, 2010.
On May 26, 2010, the Board received a letter signed by Dr. Naprawa, the claimant's treating psychiatrist, which stated that:
"[The claimant] has been diagnosed with major depressive disorder (MDD)… the precipitating event of the onset of the MDD was the loss of ability to work due to medical reasons [bilateral carpal tunnel syndrome]. This conclusion is based on [the claimant] not having a history of treatment for psychiatric disorders before the loss of ability to work, sudden onset after discontinuation of employment as well as reports of hopelessness due to not having 'purpose' anymore."
Dr. Sangani, the GSIT's consulting psychiatrist, submitted an IME-4 report of an examination on July 12, 2010, and noted that the claimant was insistent that she never received psychiatric care before 2009, after having developed carpal tunnel syndrome. Dr. Sangani opined that the depression is not causally related to the carpal tunnel syndrome. Dr. Sangani explained that although the claimant alleges that she is depressed because she is unable to return to work, she has been released to return to work. Therefore, the depression must be a pre-existing condition.
At the hearing on July 26, 2010, the claimant testified that she was first treated for depression in 2008, after having a hysterectomy. She was given Xanax but did not go to counseling. She only took the Xanax for a couple of days. Prior to 2008, she was never treated for anxiety or depression. Her most recent treatment for depression began in the early part of 2009. She saw Dr. Graves and was given Xanax and Zoloft. Following a suicide attempt in February of 2010, the claimant was admitted to a hospital and began treating with Dr. Naprawa.
Dr. Naprawa testified by deposition on September 9, 2010, that he first saw the claimant on February 10, 2010, and he was aware of the claimant's history of difficulty coping with her role as the primary caretaker of both her parents. However, he conceded that he was unaware of a 2008 depressive episode following the claimant's hysterectomy and did not know that the claimant's Dr. Murphy had released the claimant for work on April 2, 2010.
Dr. Sangani testified by deposition on September 30, 2010, and agreed that the claimant is depressed and needs treatment. However, in finding that the depression is not due to a work-related injury, Dr. Sangani explained that,
"[The claimant] first started getting depressed because of her inability to work. However, the carpal tunnel surgery has been successful. She has been released by her surgeon to go back to work. So if indeed the depression was due to the carpal tunnel problems, then that problem is over she should not be depressed anymore. Since she continues to be depressed, that would make me think that, probably, her depression is a preexisting condition."
The parties submitted memoranda of law, and in a reserved decision filed on November 19, 2010, the WCLJ disallowed the claim for consequential depression, crediting the opinion of Dr. Sangani. The WCLJ further found that the claimant was not credible because her testimony was inconsistent with the medical record. The WCLJ explained that although "[t]he claimant has testified the only reason she is depressed is because she could not work, [she] was released to return to work on 04/02/10 by Dr. Murphy." The WCLJ further noted that "the claimant was not forthcoming to the medical providers regarding prior treatment [for depression] when she had a hysterectomy."
"[T]he resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation" (Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135 ; see Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d 1114 ). However, the Board "may not rely upon a medical opinion that is purely speculative rather than demonstrating a reasonable probability as to the cause of an injury. For a medical opinion regarding causation to qualify as competent evidence, it must signify a probability as to the cause of the injuries for which compensation is sought and be supported by a rational basis" (Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067  [quotation marks and citations omitted]).
Here, Dr. Sangani opined that the claimant's depression was not caused by her inability to work due to her carpal tunnel syndrome since the claimant continues to be depressed even after being released to return to work. While Dr. Sangani did not have definitive evidence that claimant's depression pre-dated her carpal tunnel injury at the time he examined claimant, as claimant conveyed to him at the time of the examination that she had not received psychiatric care prior to developing carpal tunnel syndrome, the doctor reasonably inferred that her depression was pre-existing based on the failure of her depression to abate once her carpal tunnel injury ceased being disabling. Moreover, Dr. Sangani's inferred belief that claimant's depression pre-dated her carpal tunnel injury was corroborated by claimant's testimony that she had treated for depression and been prescribed Xanax following a hysterectomy prior to developing carpal tunnel syndrome. Based on the record, Dr. Sangani's opinion was supported by a rational basis.
While Dr. Naprawa found that claimant's depression was consequential to her carpal tunnel injury, he conceded during his testimony that he was unaware that the claimant had been released to return to work in April 2010 by Dr. Murphy, and he was also unaware that the claimant had treated for depression after having a hysterectomy, prior to the date that she first treated for carpal tunnel syndrome in December 2008.
Therefore, the Full Board finds that the claim for consequential depression was properly disallowed.
Accordingly, the WCLJ reserved decision filed on November 19, 2010, is AFFIRMED in its entirety. No further action is planned by the Board at this time.