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 March 7, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant sustained an occupational disease involving the left foot and ankle.
In a reserved decision filed on April 22, 2011, the Workers' Compensation Law Judge (WCLJ) disallowed the claim.
The Board Panel majority reversed the WCLJ and established the case for an occupational disease of the claimant's left foot and ankle.
The dissenting Board Panel member would find that claimant's left foot disability is not an occupational disease because it was caused by the environment of her new job location, rather than a distinctive feature of her employment.
In its application for Mandatory Full Board Review, the self-insured employer (SIE) asserts the claimant did not suffer a causally related occupational disease to the left foot because the claimant was not credible as to her statements regarding her increased walking and that extensive walking is not a distinctive feature of the claimant's employment, but rather is a specific condition particular to the claimant's place of work.
In rebuttal, the claimant contends the Board Panel majority correctly found that repetitive walking is a distinctive feature of her job and that the record contains sufficient medical evidence to find the claimant suffered an occupational disease to her left foot and ankle
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is a controverted claim for left foot and ankle injuries. In a C-3 (Employee Claim) filed December 7, 2010, the claimant, an LPN, stated that her "work environment changed which caused me to walk 2-3 times farther and with that I began to have severe pain in left foot/ankle."
The claimant first treated with Dr. Baumhauer on July 26, 2010. In response to a request by claimant's attorney for an opinion regarding whether claimant's posterior tibial tendinitis is work related, Dr. Baumhauer, in a letter dated November 8, 2010, wrote:
Apparently [claimant's] employer moved to larger offices in February of  which corresponded to the patient's onset of her posterior tibial tendinitis. Clearly, this posterior tibial tendinitis problem is mechanical and with increased activity, this does cause increasing pain. Insomuch as her only increase in her activity was her increased walking at work, then it would be logical that the increased walking at work led to her tendinitis problem.
On March 22, 2011, the claimant testified that she started working for the employer in June 2005. Her first two assignments were located at the hospital. In the spring of 2008, she was transferred to an office located on South Union Street. While at this office, her job duties included walking to retrieve items, seeing patients, going to the lab department, and whatever else was asked of her. In order to perform her job duties, she had to walk around to different areas of the office. She often wore a pedometer at work, which her office provided, in an effort to improve her health. She calculated her steps about three to four weeks per year. The pedometer read that she walked about 12,000 to 15,000 steps per day. In the spring of 2010, her office moved to Landry Way. This office was much larger than the office on Union Street, which necessitated more walking to perform the same job duties. While she worked at Landry Way, the pedometer read that she walked about 18,000 to 21,000 steps a day. This increase in steps taken was due to her having to walk greater distances in the larger office, including walking a greater distance to get some of the equipment that was on the other side of the office. At the Landry Way office, two of the three exam rooms were located close to her desk, with one exam room located on the other side of the room. The amount of walking on a particular day depended on the work performed. She walked farther two days per week. In addition to the examination room locations, the bathroom and cafeteria were located on the other side of the building. Without sustaining a traumatic injury, her left foot began swelling up and bothering her towards the end of March 2010. She did not have any left foot pain prior to the office moving to Landry Way. In April 2010, she advised her office manager that her left foot began bothering her because of the increased walking at the new building. The office manager advised her to go to the employee health office, which she did. While there, she had an x-ray, which revealed nothing was broken. Upon going back to work, she continued to have difficulty with her left foot and her pain progressively worsened. She first sought medical treatment with Dr. Baumhauer in July 2010. Dr. Baumhauer gave her an air cast to wear for three months. The air cast did not alleviate her left foot pain. She returned to Dr. Baumhauer in October 2010, at which time Dr. Baumhauer recommended the claimant undergo surgery because the left foot condition had not improved. She worked at the Landry Way office until July 2010, when she was transferred, at her request, to a smaller office located on Irand Cottage Parkway. She did not advise the office manager that she applied to move locations due to her left foot condition. Her job at the new office involves less walking than she did while working at Landry Way.
The employer's office manager testified that the South Union Street office was approximately 8,000 square feet and the Landry Way office was approximately 10,000 square feet. The claimant would not need to walk to the other side of the Landry Way office to get medical equipment as the equipment is located on both sides of the office, though a provider might have preferred one machine on the other side of the office. The claimant would have to walk to the other end of the office for bathroom breaks. The office manager was aware that the claimant complained of left foot pain in April 2010, but did not recall the claimant blaming her left foot pain due to increased walking. The office manager testified that the claimant's job requires a lot of walking.
Following lay witness testimony, the self-insured employer (SIE) waived their opportunity to get a consultant's report on the issue of causal relationship.
Dr. Baumhauer was deposed on March 25, 2011, and testified she first saw the claimant on July 26, 2010. During this exam, the claimant complained of pain on the inside aspect of the left ankle and in the back of the left ankle for several months without trauma. The claimant believed that the foot and ankle symptoms correlated to the additional walking she performed at her new office. Following an examination, Dr. Baumhauer diagnosed posterior tibial tendonitis of the left foot. According to Dr. Baumhauer, that condition is caused by overuse, and could have been caused by increased walking at work. Although the cause of the condition was probably multi-factorial, claimant's increased walking caused the condition to get worse.
In an April 22, 2011, reserved decision, the WCLJ disallowed the claim. The WCLJ found the record contained "no evidence that the amount of walking the claimant alleges is a distinctive feature of her job title in general" and that it is "not the general nature of the job title of nurse, or licensed practical nurse, that they perform a lot of walking in a large building." Therefore, the WLJ concluded, claimant's condition "is not recognizable as an occupational disease under the case law." The WCLJ also found that claimant was not credible with respect to the increased amount of walking she was required to do when her office moved.
"'An occupational disease is a condition which 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  [citation omitted]; see Workers' Compensation Law § 2; Matter of Currier v Manpower, Inc., of N. Y., 280 AD2d 790 ). To establish an occupational disease, a claimant must demonstrate a 'recognizable link' between the alleged condition and a 'distinctive feature' of his or her work (Matter of Winn v Hudson Val. Equine Ctr., 215 AD2d 920 ; see Matter of Aldrich v St. Joseph's Hosp., 305 AD2d 908 )" (Matter of Ball v New Era Cap Co., Inc. 21 AD3d 618 ).
Although walking is a common everyday human activity, periods of continuous standing and walking have frequently been found to be a sufficiently "distinctive feature" of a claimant's employment to support the establishment of an occupational disease claim (see Matter of Wildermuth v. B. P. O. Elks Club, 5 AD2d 911 ; Matter of Ward v Glanton, 32 AD2d 869 ; Matter of Strouse v Endicott, 50 AD2d 635 ; Aldrich v St. Joseph's Hosp., 305 AD2d 908 . "It is the finding that claimant's duties," in this case continuous walking, "caused the disability that is crucial" (Strouse v Endicott, 50 AD2d 635 ).
In Aldrich, the claimant, an LPN, testified her job duties entailed walking up and down hallways to care for patients. The claimant developed a bone spur in her foot while working at a hospital, and the claimant claimed she had not experienced any prior foot problems. The court held that the claimant suffered a compensable occupational disease as the evidence established repetitive walking to care for patients was a distinctive feature of the claimant's job and that the claimant supplied medical proof of a work-related disability (Aldrich, 305 AD2d 908 ).
Here, as in Aldrich, the claimant is an LPN whose job requires repetitive walking to perform her job duties. The employer's office manager conceded that the claimant's job requires the claimant to do a lot of walking. Therefore, the Full Board finds that repetitive walking was a sufficiently distinctive feature of claimant's employment to find that her resulting left foot and ankle constituted an occupational disease within the meaning of the Workers' Compensation Law.
Dr. Baumhauer testified that the claimant's condition is degenerative and that claimant's job change and significant increase in walking definitely caused the claimant's left foot and ankle disability. The claimant's increased walking was confirmed by the claimant's testimony that the pedometer worn at work indicated that the claimant walked about 6,000 more steps daily at the Landry Way office site than when she had worked at the South Union office site. In addition, the claimant credibly testified that she had no prior left foot or ankle problems prior to the employer's move in February 2010. Thus, the Full Board find s that the preponderance of the evidence in the record supports a finding that repetitive walking at work caused claimant's current left foot and ankle condition.
ACCORDINGLY, the WCLJ decision filed on April 22, 2011, is REVERSED and this claim is established for an occupational injury to claimant's left foot and ankle, with a date of disablement of July 26, 2010, the date of Dr. Baumhauer's initial report.