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Case # 20701436
Date of Accident: 02/23/2007
District Office: Hauppauge
Employer: CVS Pharmacy
Carrier: New Hampshire Insurance Co
Carrier ID No.: W154009
Carrier Case No.: 10644-41257
Date of Filing of Decision: 03/07/2013
Claimant's Attorney: Terry Katz & Associates, PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on January 15, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 13, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether this claim should be amended to include bilateral carpal tunnel syndrome (CTS) and ulnar neuropathy.

In the July 19, 2010, decision, the Workers' Compensation Law Judge (WCLJ) found that the claimant's bilateral CTS and ulnar neuropathy are not causally related to the accident of this file.

The Board Panel majority reversed the WCLJ's decision, and established the claim for bilateral CTS, relying on the opinion of Dr. Epstein, an impartial medical specialist chosen by the Board.

The dissenting Board Panel member found Dr. Epstein's opinion about the cause of claimant's CTS to be too speculative to support a finding that the condition is causally related.

On March 12, 2012, the carrier filed a request for Mandatory Full Board Review of the Board Panel decision duly filed and served on February 13, 2012. The claimant filed a rebuttal on April 11, 2012.

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

FACTS

This case has been established for a work-related injury to the claimant's head, neck, back, consequential bladder/bowel dysfunction, erectile dysfunction, consequential depression, post-concussion syndrome, consequential asteatosis, and post-traumatic stress disorder, all resulting from an accident that occurred on February 23, 2007. The claimant's average weekly wage has been set at $1,087.92.

The parties deposed the claimant's treating internist, Dr. Korman, who diagnosed claimant with causally related bilateral CTS, and the carrier's consulting neurologist, Dr. Sharma. The claimant's orthopedic hand surgeon, Dr. Hochwald, did not testify, but submitted reports with respect to the claimant's bilateral carpal tunnel syndrome and ulnar neuropathy as being causally related to his work-related injury.

Dr. Korman testified by deposition on May 24, 2010, that he had treated claimant since his February 26, 2007, accident. He testified that the claimant presented with a history of 1100-1200 lbs. of detergent falling on him off a truck from a pallet that was unstable. The claimant was unconscious for over ten minutes. Dr. Korman performed an examination on the date of the accident, and found numerous positive findings, including limited range of motion of the cervical, lumbar, and thoracic spine. On October 31, 2008, the claimant presented with complaints consistent with CTS and a positive orthopedic examination for the right CTS as well as an electromagnetic test from August 20, 2008, showing bilateral CTS. He last examined the claimant on March 21, 2010. Dr. Korman testified that the claimant's accident brought on the bilateral CTS and ulnar neuropathy approximately a year and a half after the incident. He explained that despite no diagnosis having been made until a year and a half after the accident, it was clear from the mechanism of the injury, and the fact that claimant did not suffer from those symptoms prior to the date of the accident, that it was a result of the accident. He opined that it is common for patient not to report symptoms right away, because they may have superseding symptoms from other injuries that mask the symptoms of early CTS. He further stated that it is possible that after the pain from his other injuries had decreased, the claimant began to feel the pain from CTS, especially if the pain worsened, as it tends to do when left untreated. He stated that no fracture is needed in order for CTS to develop from trauma, since the nerve location is superficial and can easily be affected. He conceded that a neck injury can cause symptoms similar to CTS, but opined that the claimant's condition did not derive from the neck injury, since the Phalen and Tinel's test were positive. Dr. Korman did not recall any pre-existing conditions that made the claimant more susceptible to CTS.

The carrier's consultant, Dr. Sharma, testified that he examined the claimant on September 20, 2007, and August 21, 2009, and issued an addendum dated on October 19, 2009. At the time of the examination on September 20, 2007, the claimant complained of pain in the head, neck, mid and lower back areas. He also had brief sharp pain in the right shoulder blade region and a burning sensation in the upper spinal area. However, the claimant did not report any complaints in the lower extremities, and there were no positive objective neurological findings. The claimant's Tinel and Phalen's sign were both negative. On August 21, 2009, there still were no objective neurological findings, and the claimant did not present weakness in the upper or lower extremities. Dr. Sharma maintained in his addendum dated October 19, 2009, that given the nature of CTS and the distance in time between the accident and the onset of symptoms, the claimant's bilateral CTS and ulnar neuropathy are not causally related. Dr. Sharma testified that even if the EMG study shows positive findings, the findings must be correlated to the examination findings.

In a medical narrative report dated March 20, 2009, the claimant's hand surgeon, Dr. Hochwald, opined that the claimant has had numbness in his upper extremities since the February 23, 2007, accident. He concluded that bilateral CTS and ulnar neuropathy are causally related to the accident. Dr. Hochwald performed a right elbow ulnar nerve decompression and carpal tunnel release on July 21, 2010, and a left elbow ulnar nerve decompression and carpal tunnel release on September 1, 2010.

In a July 19, 2010, decision, the WCLJ found that claimant's bilateral CTS and ulnar neuropathy are not causally related to his accident. Claimant requested administrative review of that decision.

In a decision filed on January 4, 2011, the Board Panel directed that the matter be referred to an impartial specialist for an independent and neutral medical opinion.

Dr. Epstein, an impartial specialist in the field of orthopedic surgery designated by the Board, examined the claimant on April 12, 2011. In his report, Dr. Epstein indicated that he had treated many patients for traumatic CTS which developed "anywhere from right after the accident, up through a few months later." Claimant's case was unusual in that he did not develop CTS until 20 months after the accident. Dr. Epstein noted that claimant had not been employed since the accident and there was no explanation other than the accident for how the CTS developed. Dr. Epstein concluded that "it is possible that the carpal tunnel and cubital tunnel syndrome in both hands may have actually resulted as a consequence of these injuries, albeit it is very unusual to present this late." Dr. Epstein further stated that in the absence of any other explanation for the development of these conditions, he "would take the side that these are work-related injuries, albeit somewhat unusual in presentation."

Dr. Epstein was deposed on September 6, 2011. Dr. Epstein testified that he believes that the claimant's bilateral CTS was caused by the accident of February 23, 2007. Dr. Epstein concurred with Dr. Korman that the claimant probably fell onto his hands after being struck on the head from behind by a pallet of detergent. Although the incident was unwitnessed, Dr. Epstein reasoned that the mechanism of the injury that knocked the claimant down would have caused him to fall forward onto his hands, a trauma sufficient to lead to bilateral CTS. Dr. Epstein acknowledged that an onset so many months after the accident is unusual, but he would not consider such an occurrence to be beyond the realm of possibility. Dr. Epstein also acknowledged that his conclusion involves significant speculation, but he asserted that with no other etiology presented, his opinion tipped in the direction of finding that the fall onto the claimant's hands was the likely cause of the CTS and cubital tunnel syndrome.

LEGAL ANALYSIS

"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

Here, the record contains divergent medical opinions concerning whether the claimant has compensable bilateral CTS. The claimant's treating internist, Dr. Korman, and the claimant's consulting hand surgeon, Dr. Hochwald, have maintained that the claimant's accident brought on the bilateral CTS and ulnar neuropathy approximately a year and a half after the incident. Dr. Korman explained that the pain from claimant's other injuries could have masked claimant's CTS symptoms. In contrast, the carrier's consulting neurologist, Dr. Sharma, opined that the claimant's bilateral CTS is not causally related to the claimant's compensable accident. Dr. Epstein, an impartial specialist designated by the Board, explained that with no other known potential causes, the probable cause of claimant's CTS was the claimant falling onto his hands after being struck from behind by a pallet of detergent that resulted in trauma sufficient to cause the condition.

Based on the foregoing, the Full Board finds that the preponderance of the credible evidence in the record supports amending this claim to include causally related bilateral CTS and ulnar neuropathy resulting from claimant's February 23, 2007, accident.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 19, 2010, is REVERSED and this claim is established for bilateral CTS and ulnar neuropathy.