The Full Board, at its meeting on September 11, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on November 9, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant's bilateral carpal tunnel syndrome is causally related to her employment.
The Workers' Compensation Law Judge (WCLJ) established the claim for bilateral carpal tunnel syndrome.
The Board Panel majority reversed the WCLJ and found that the claimant's carpal tunnel syndrome is not related to her work with the employer.
The dissenting member would affirm the WCLJ
The claimant filed an application for Mandatory Full Board Review filed on December 9, 2011.
The group self-insured trust (GSIT) filed a rebuttal on January 6, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On March 3, 2010, the claimant filed a C-3 (Employee Claim) indicating that over time she had developed bilateral carpal tunnel syndrome while working at a convenience store.
In a report dated October 5, 2009, the claimant's treating physician, Dr. Braiman, indicated that the claimant is a "21 year old female who reports fluctuating numbness in her hands and fingers over the past three to four months. She is now eight plus months pregnant and also cares for her little three-and-one-half year old girl." Dr. Braiman concluded that the claimant has "possible median nerve entrapment or carpal tunnel syndrome associated with later stages of pregnancy; rule out impaired glucose tolerance and thyroid dysfunction…things may return to normal after she delivers in October 2009." In a report dated January 5, 2010, Dr. Braiman indicates that he re-examined the claimant on December 23, 2009, following her delivery, and that the claimant reported increasing symptoms "aggravated by infant care." Dr. Braiman's reports were submitted with the GSIT's application for administrative review filed January 26, 2011. The Full Board hereby exercised its discretion to accept and consider this new evidence pursuant to 12 NYCRR 300.13(e)(1)(g).
At the hearing held on August 30, 2010, the claimant testified that she began employment at the convenience store in August 2007. Her general job duties included operating the cash register, keeping the store clean and keeping the shelves stocked. The claimant left the employ of the convenience store in September 2008 to work for a different gas station/convenience store, but returned to her original employer two months later, in either October or November of 2008. Upon her return, her job duties included operating the cash register and upkeep of the store (changing coffee pots, making sure the coolers and shelves were stocked, cleaning, and taking out garbage). After she became pregnant with her second child in early 2009, the claimant began working in the deli section of the convenience store, where her work activities involved keeping the deli clean, cleaning dishes, making pizzas, and using the deep fryers, slicer, and cash register. The claimant first began noticing tingling and numbness in her hands in 2009. The claimant's first child was born on January 9, 2006. Her second child was born on October 16, 2009. The claimant first advised her medical provider (her OB-GYN) that she had problems with her hands in either September or October of 2009. The OB-GYN referred the claimant to a neurologist, Dr. Braiman. The claimant treated with Dr. Braiman in September 2009, delivered her child in October 2009, and returned to see Dr. Braiman in November 2009 for further treatment. The claimant later saw hand surgeon Dr. Fatti in February 2010 for her hand condition. The claimant testified that Dr. Fatti told her he would not be able to address the issue of causation until after she was six months post-partum.
On cross-examination, the claimant testified that there were two other employees assigned to the cash register in the front end of the store, and that at times, two other individuals worked in the deli with her. The claimant also acknowledged that she was not the only individual at the store who would be stocking produce on the shelves or cleaning the store. The claimant had no problems performing her job duties in 2007 and 2008. The claimant testified she developed low back issues in 2009 associated with her pregnancy, but that her doctors did not take her out of work. The first time she complained of numbness or tingling in her hands was when she went to Oswego Hospital Emergency Room on September 21, 2009, when she was thirty-five weeks pregnant. The claimant stated the first time she had numbness in her hands was after she became pregnant in January 2009. When she saw Dr. Braiman on September 30, 2009, she advised him that she experienced fluctuating numbness in her hands and fingers over the past two to three months. The claimant acknowledged that Dr. Braiman advised her the carpal tunnel condition could be related to the later stages of pregnancy, and also advised her that she should rule out a potential thyroid disorder (of which there is a family history) as the cause of her complaints. After she delivered her child on October 16, 2009, the claimant had nerve conduction tests performed by Dr. Braiman on November 15, 2009, and December 23, 2009. The claimant confirmed the history she provided to Dr. Braiman on December 23, 2009, that she was the sole caregiver for her then two month old child and three and a half year old child. The claimant further acknowledged that since being out of work in October 2009 that her hands were very painful and aggravated by caring for her children. The claimant was shown a letter, marked as the GSIT's Exhibit A, dated September 22, 2009, authored by her and provided to her employer. In the letter she advised her employer of her intention to reduce her hours. She testified that she submitted this letter because of complications she was having secondary to her back in connection with her pregnancy. After delivering her baby on October 16, 2009, the claimant testified she was out of work for three to four months. She did not return to work until February 2010, at which time she worked the reduced hours she previously requested prior to going out on maternity leave. The claimant initially saw Dr. Fatti's nurse on February 1, 2010, and advised the nurse that she believed her condition was work-related. The claimant saw Dr. Fatti on March 15, 2010. The claimant was laid off from her job sometime in between February 2010 and March 2010. The claimant has been out of work since and collected unemployment up until the week of the hearing.
The manager of the convenience store testified at the hearing on November 30, 2010. The manager hired the claimant in 2007. The claimant was trained to work both the front end and deli at the time of her hire. The claimant's initial assignment was at the front end with her most common shift being 5:00 p.m. to 11:30 p.m. While working the front end, the claimant's duties involved cashing people out, stocking shelves and cleaning. There are two cashiers on every shift. A touch screen is used when coffee is purchased and a scanner is used with all other items. The claimant's job did not involve heavy lifting. The cooler was stocked once per shift and it would not necessarily be the same person stocking the cooler every shift. Shelves were stocked on two out of seven days. The witness recalled that shortly after hiring the claimant, the claimant discussed her hand problems, and had difficulty with her hands throughout her employment. The witness recalled that the claimant advised her she had carpal tunnel syndrome a few months after the claimant started working for the convenience store, and indicated that it was present before she started working at the store. The claimant was moved to the deli after she became pregnant in the early part of 2009, where her duties included preparing food (i.e., making a pizza once every two hours), using fryers (that weighed approximately two pounds), slicing meat with an electric slicer and prep work. The witness testified that the deli was not busy, especially during the shift usually worked by the claimant, and when not waiting on customers, the employee should be doing prep work or cleaning. The manager further testified that neither position held by the claimant (front end and deli) involved repetitive use of the hands.
The former assistant manager of the convenience store also testified at the hearing held on November 30, 2010, that the claimant's job did not generally involve repetitive use of the hands.
The claimant's treating physician, Dr. Fatti, testified by deposition on November 30, 2010, that he first personally examined the claimant in March 2010, and that the claimant was initially seen in his office by his nurse in February 2010 for complaints in both hands and wrists. The claimant provided him with a history of doing repetitive type work such as lifting deep fryers, washing dishes, and flipping pizzas, and having symptoms dating back to February 2009. Dr. Fatti testified that pregnancy is a very common cause of carpal tunnel syndrome symptoms and symptoms typically go away three to four months after delivery. Dr. Fatti testified he believed the main cause of the claimant's carpal tunnel syndrome to be the claimant's history of repetitive, heavy activities performed at work. Dr. Fatti recommends surgical repair of the claimant's carpal tunnel condition. Dr. Fatti conceded that he was unaware of the weight of the deep fryers and how frequently the claimant was required to lift them, or any other details concerning the claimant's work activities, including how long the claimant worked, and whether she worked full time or part time. He agreed that it was relevant that the claimant did not have any problems in her hands until she became pregnant, as ten percent of women who are pregnant develop carpal tunnel syndrome due to swelling during the middle to later stages of pregnancy resulting in increased pressure on the carpal's canal and a hormonal component. Dr. Fatti further acknowledged that his office notes dated September 13, 2010, indicated that the claimant was five months pregnant (with her third child). He agreed that the claimant would have become pregnant in April 2010, and it was not unusual that a subsequent pregnancy would also prolong her symptomology.
The GSIT's consultant, Dr. Ferraraccio, testified by deposition on December 8, 2010, that he examined the claimant on November 10, 2010. The claimant provided a history that she began having difficulties with both of her hands about one and one-half years prior to his examination of her (in approximately May of 2009). He also testified that the claimant advised him she first developed symptoms in her hands when she was five months pregnant with her second child. He was aware the claimant was pregnant (again) when he examined her. After a review of the claimant's medical records and a physical examination, the doctor's diagnosis of the claimant was "possible carpal tunnel syndrome" in light of the fact that she had mildly positive EMG studies but her complaints and physical findings did not confirm the diagnosis. The claimant provided a history of her work activities to Dr. Ferrarraccio. As to causal relationship, Dr. Ferraraccio opined that there is no causal relationship between the claimant's condition and her employment as she was not engaged in activities that required repetitive or forceful motion of the hand or wrist nor was she engaged in the use of any vibratory equipment. Dr. Ferraraccio noted the claimant's pregnancy and concern with respect to thyroid dysfunction as potential risk factors associated with carpal tunnel syndrome. He further testified that pregnancy can produce or make carpal tunnel syndrome symptomatic, and that he has seen cases where carpal tunnel syndrome developed during pregnancy and the symptoms did not resolve after delivery. Dr. Ferraraccio also testified that there was no known association between individuals working as deli/food preparation workers or cash register operators and carpal tunnel syndrome.
In a decision filed December 31, 2010, the WCLJ established the case for occupational disease involving bilateral carpal tunnel syndrome; the date of disablement was set at February 1, 2010. No awards were directed, but surgery was authorized and the case was marked no further action.
Workers' Compensation Law (WCL) § 2(15) defines an occupational disease as one resulting from the nature of employment and contracted therein. A claim for occupational disease is restricted to medical conditions resulting from the ordinary and generally recognized risks incident to a particular occupation; it derives from the very nature of the employment, not a specific condition peculiar to the employee's place of work (Matter of Mack v County of Rockland, 71 NY2d 1008 ). To establish an occupational disease, a claimant must demonstrate a recognizable link between the alleged condition and a distinctive feature of his/her work (Matter of Ball v New Era Cap Co., Inc., 21 AD3d 618 ).
Here, the record reveals that the claimant did not begin having symptoms of carpal tunnel syndrome until sometime during the mid to later stages of her pregnancy, and first complained of such symptoms to a medical provider in September 2009. The doctors are in agreement that carpal tunnel syndrome can occur secondary to pregnancy, with symptoms appearing in the mid to late stages of the pregnancy. Both employer witnesses indicated that the claimant's job duties did not involve repetitive use of her hands. Dr. Ferraraccio opined that there is no causal relationship between the claimant's condition and her employment as she was not engaged in activities that required repetitive or forceful motion of the hand or wrist nor was she engaged in the use of any vibratory equipment. While Dr. Fatti opined that the claimant's carpal tunnel syndrome was due to the repetitive and heavy nature of her work, Dr. Fatti's testimony demonstrated that he was unfamiliar with the particulars of the claimant's job duties and unaware of the claimant's work hours. The claimant further acknowledged that since being out of work in October 2009, her hands were very painful and aggravated by caring for her children. As opined by Dr. Ferraraccio, the preponderance of the evidence suggests that the claimant's carpal tunnel condition was not causally related to her employment. Dr. Fatti's opinion is not credible as it is based on the conclusion that the claimant was engaged in "heavy, repetitive work." The record here shows that the claimant was not engaged in heavy, repetitive work activities, and was switched from the front end to the deli once she became pregnant, then reduced her hours in September 2009 until she went out on maternity leave in October 2009. The claimant was not working from October 2009 until February 2010, yet according to the medical records, her symptoms worsened, further confirming Dr. Ferraraccio's opinion that the cause of her carpal tunnel syndrome was not her work activity, but pregnancy and child care-related as reported by Dr. Braiman. Hence, the claimant has failed to demonstrate a recognizable link between the alleged condition and a distinctive feature of his/her work. The preponderance of the evidence suggests that her carpal tunnel syndrome is due to other causative factors, namely her pregnancies and child-care duties.
The dissenting Board Panel member placed emphasis on the fact that the claimant's symptoms remained postpartum, making it unlikely that the claimant's pregnancies contributed to the development of her carpal tunnel syndrome. However, the dissenting panelist failed to acknowledge that Dr. Fatti indicated that it could take approximately three to four months for pregnancy-induced carpal tunnel syndrome to resolve. The dissenting panelist also negated the fact that the claimant became pregnant again in April 2010. Dr. Ferraraccio testified that not all cases of pregnancy-induced carpal tunnel syndrome resolve postpartum. Moreover, Dr. Fatti further confirmed that it was not unusual that a subsequent pregnancy could prolong symptomology.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant's carpal tunnel syndrome is not causally related to her work with the employer of record herein.
Accordingly, the WCLJ decision filed on December 31, 2010, is REVERSED and the claim is disallowed.