The Full Board, at its meeting held on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 19, 2012.
The issues presented for Mandatory Full Board Review are:
In a decision filed August 26, 2010, the Workers' Compensation Law Judge (WCLJ) found Workers' Compensation Law (WCL) § 28 "is not a bar to this claim." By subsequent decision filed September 24, 2010, the WCLJ established the case for a work-related injury due to repetitive stress, for bilateral carpal tunnel syndrome (CTS). He set the date of accident as July 3, 2009. Richards was found to be claimant's employer.
The Board Panel majority modified the date of disablement (even though the case was established as an accident rather than an occupational disease) to June 25, 2009, but affirmed the notice of decision (NOD) filed September 24, 2010, in all other respects.
The dissenting Board Panel member found that the only appropriate date of disablement was in August or September 2007, when the claimant advised he had first been told by a doctor he had work-related CTS. The dissenting Board Panel member noted that no causally related lost time existed in the claim, and the claimant had stopped working in June 2009, as he had been laid off. Accordingly, the dissenting Board Panel member would disallow the claim as untimely filed pursuant to WCL § 28 as the claim was not filed until January 2010, more than two years after the proper date of disablement.
In its application for Mandatory Full Board Review, the carrier for Richards on June 25, 2009, Illinois National (Chartis), contends that the claim should be time barred pursuant to WCL § 28, or in the alternative, that Richards should not have been found to be the liable employer as the claimant worked for Triple M for three days in January 2010.
In rebuttal, the claimant argues that the Board Panel's decision should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a sheet metal worker, contends he developed bilateral CTS as a result of repetitive use of his hands in working with metal, over the course of his career. A C-3 claim form was filed on January 11, 2010. As the case was contested, the record was developed.
The claimant testified, via telephone, at a hearing held August 23, 2010. The claimant was not currently working. He had been employed as a sheet metal worker, and used his hands to use shears to cut metal and flanges to bend metal. He was a member of union Local 28, and had last worked as a sheet metal worker on June 25, 2009, for Richards. He had subsequently worked three days in January 2010, for Triple M but did not bend sheet metal. His three days working at Triple M was in a supervisory capacity, although he did a little welding, spray painted welds and cleaned the rust of iron gates. Triple M needed someone with a welding certificate to supervise, and claimant had a welding certificate. While working for Richards his last assignment had been at Cooper Union, a school in Manhattan. He had worked at that job location for nine to ten months, seven hours per day, five days per week, as well as overtime. He did his regular sheet metal installation at Cooper Union. He noticed problems with his hands while doing the job at Cooper Union, but worked through them. He stopped working in June 2009, because he was laid off.
The claimant denied any specific injury to his hand. He had first noted hand problems some time ago "At least, like, ten years" (see August 23, 2010, transcript, pg. 8), but had not treated for his hands until the pain got worse in 2007. In October or November 2007, he treated with Dr. Katzman. At that time, Dr. Katzman took a work history, and advised the claimant that he had CTS, and that it was work related. Dr. Katzman was the first doctor to advise the claimant of this. The claimant did not recall who he was working for in 2007, when the work-related diagnosis was first made. The claimant did not work from June 25, 2009, through January 2010. He continues to treat with Dr. Katzman., After treating with Dr. Katzman in 2007, he did not receive treatment again for his hands until August or September of 2009, when he was treated by Dr. Rogers.
The record does not contain any records of claimant's treatment with Dr. Rogers, or of his treatment with Dr. Katzman in 2007.
The earliest medical evidence in the record is the report of a November 2, 2009, EMG/nerve conduction study which showed "severe right greater than left bilateral sensorimotor medical neuropathy at the wrists," which was "consistent with the clinical diagnosis of Carpal Tunnel Syndrome.
Claimant began treating again with Dr. Katzman on March 10, 2010. In his initial report, Dr. Katzman diagnosed claimant with bilateral carpal tunnel syndrome resulting from repetitive use of his hands at work and requested authorization for carpal tunnel release and flexor tenomyectomy. Nonetheless, in his initial report, Katzman indicated that claimant was performing his usual work activities and did not indicate any disability.
However, in his next report, based on an April 13, 2010, examination, Dr. Katzman found that claimant could not return to work "[d]ue to the severity of pain, weakness, and decreased range of motion." Dr. Katzman also noted that claimant was not currently working and "[i]t may be dangerous for him to do sheet metal work at this time frame."
The record contains a June 23, 2010, investigation report by the Workers' Compensation Board's Bureau of Compliance, which stated that Richards had a "wrap-up" policy issued by Illinois National covering the Cooper Union job site which was effective from March 2, 2007, to July 3, 2009, and that Richards' "main policy" was issued by State Insurance Funds (SIF) and had been effective since April 6, 2009. The report recommended that Illinois National be placed on notice "as proper carrier."
Claimant was examined by Dr. Alverez, the orthopedic consultant for Illinois National (Chartis) on August 11, 2010. Dr. Alverez found that clamant had bilateral carpal tunnel syndrome that it was causally related to his employment.
The orthopedic consultant for SIF, Dr. Orlandi, examined claimant on September 3, 2010, and diagnosed a resolved left wrist sprain and right carpal tunnel syndrome, but did not offer an opinion on causal relationship.
At a hearing on August 23, 2010, the WCLJ ruled that WCL § 28 "is not a bar to this claim" (see NOD filed August 26, 2010). Neither carrier sought review of that decision. The case was continued and at the next hearing, held on September 21, 2010, the WCLJ established the case for a work-related injury (see WCLJ discussion, September 21, 2010, transcript, pg. 3), due to repetitive stress, for bilateral carpal tunnel syndrome (CTS). He set the date of accident as July 3, 2009, found that Richards was the liable employer and Illinois National (Chartis) was the liable carrier, and discharged SIF and removed them from notice. These findings were memorialized in a decision filed September 24, 2010.
WCL § 28-Occupational Disease
An occupational disease "derives from the very nature of the employment and not from an environmental condition specific to the place of work" (Matter of Bates v Marine Midland Bank, 256 AD2d 948  [internal quotation marks and citation omitted]. Evidence that a repetitive action is a distinct feature of a claimant's employment together with medical evidence of the necessary causal link will support a claim for an occupational disease (see Matter of Aldrich v St. Joseph's Hosp., 305 AD2d 908 ).
Here, the record supports a finding that claimant's bilateral carpal tunnel syndrome was caused by repetitive use of hands as work, which was a distinctive feature of his employment as sheet metal worker, and that his claim should be established as an occupational disease.
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 or after the claimant knew or should have known that the disease is or was caused by the employment.
Pursuant to WCL §§ 28 and 42, the Board has some latitude in determining the date of disablement in an occupational disease claim (Matter of Bonneau v New York City Dept. of Sanitation, 233 AD2d 796 ; Matter of Hastings v Fairport Cent. School Dist., 274 AD2d 660 , lv dismissed 95 NY2d 926 ). "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 , lv denied 75 NY2d 709 ). It is within "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 for the Workmen's Compensation Law would thereby be furthered" (Matter of Cummings v Tenneco Chems. Div., Am. Plastics, 53 AD2d 944 ).
In the present matter, it does not appear that claimant has had any causally related lost time. Although claimant testified that Dr. Katzman diagnosed him with causally related carpal tunnel syndrome in 2007, no written reports of that treatment are in the record. The earliest evidence that claimant was disabled a result of his bilateral carpal tunnel syndrome is Dr. Katzman's April 13, 2010 report which found that claimant could not return to work "[d]ue to the severity of pain, weakness, and decreased range of motion." Dr. Katzman also noted that claimant was not currently working and "[i]t may be dangerous for him to do sheet metal work at this time frame."
Accordingly, based on the evidence in the record, the date of disablement is set at April 13, 2010, based on Dr. Katzman's report of that date, and the claim is found to be timely filed within two years of the date of disablement.
Liable Employer/Carrier- WCL § 44
In occupational diseases cases governed by WCL § 44, "an employee may recover benefits from the entity that last employed him or her in the field that ultimately caused the disabling condition. [The Workers' Compensation Law] also provides that [t]he disablement of an employee resulting from an occupational disease … shall be treated as the happening of an accident within the meaning of this chapter' (Workers' Compensation Law § 38) … '[T]he carrier on the risk on the date of disablement where occupational disease is … found is responsible for payment of the award'" (Matter of Mlodozeniec v Trio Asbestos Removal Corp., 66 AD3d 1174 , citing Matter of Nathan v Presbyterian Hosp. in City of N.Y., 66 AD2d 933 , lv denied 46 NY2d 712  [additional citations omitted]).
Here, the record reflects that claimant last worked as a sheet metal worker for Richards on June 25, 2009. Although claimant testified that he worked for three days in January 2010 for another employer, he testified that he did not work as sheet metal worker at that job. Therefore, pursuant to WCL § 44, Richards is the liable employer and Richards' carrier on the date of disablement (April 13, 2010) is the liable carrier.
Accordingly, the Full Board finds that the claim is established as an occupational disease with a date of disablement of April 13, 2010, and that Richards is the liable employer.
The Full Board directs that SIF is to be placed back on notice, and the matter returned to the trial calendar for a determination of the proper carrier. Illinois National (Chartis) is to pay for all causally related medical treatment pursuant to WCL § 25(1)(f) pending determination of the proper carrier.
ACCORDINGLY, the WCLJ decision filed on July 2, 2010, is MODIFIED to establish this claim as an occupational disease with a date of disablement of April 13, 2010, to find that Richards is the liable employer, to put SIF back on notice, to return the matter to the trial calendar for a determination of the proper carrier, and to direct Illinois National (Chartis) to pay for all causally related medical treatment pursuant to WCL § 25(1)(f) pending determination of the proper carrier.