The Full Board, at its meeting held on June18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed September 28, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) amended the claim to include the right wrist and right carpal tunnel syndrome, authorized right carpal tunnel surgery, made awards and directed an attorney's fee.
The Board Panel majority modified the WCLJ's decision to increase the attorney's fee, but otherwise affirmed the decision.
The dissenting Board Panel member would have rescinded the amendment of the claim to include the right wrist and right carpal tunnel syndrome.
The carrier filed an application for Mandatory Full Board Review on October 17, 2012.
The claimant filed a rebuttal on November 8, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for an injury to the claimant's right fourth finger (pinky) which occurred on June 10, 2009, when claimant fell.
Immediately following the accident, the claimant was treated at Downtown Hospital. The claimant reported gradual onset of right fifth finger pain. An x-ray did not reveal any fracture and the claimant was diagnosed as suffering from right little finger pain and dislocation.
The claimant followed up with Dr. Rose on August 18, 2009. The claimant complained of aching, decreased range of motion and pain in his right little finger. Dr. Rose opined that the claimant had an injury at the PIP joint with a possible avulsion fracture and that the claimant was temporarily totally disabled from work.
When the claimant was next examined by Dr. Rose, on September 22, 2009, he complained of numbness and tingling on the ulnar side of his left hand. Dr. Rose referred the claimant to physical therapy.
The carrier's consultant, Dr. Wilson, examined the claimant on November 3, 2009. The claimant complained of pain in his right little finger and right radial wrist. Dr. Wilson diagnosed that the claimant was suffering from a right fourth finger dislocation with a poorly described fracture, and a right wrist sprain. Dr. Wilson opined that the claimant was moderately disabled.
In an administrative decision that became final on February 4, 2010, the claim was established for a right pinky injury; the claimant's average weekly wage was set at $1,400.00; the WCLJ found no compensable lost time for the period from June 11, 2009, to July 5, 2009; made an award for the period from July 6, 2009, to November 3, 2009, at the rate of $550.00 per week; and directed the carrier to continue payments at the rate of $480.00.
The claimant was examined by the carrier's consultant, Dr. Nathan, on June 9, 2010. The claimant complained of pain in the right arm, hand and wrist, as well as numbness and difficulty lifting. The claimant advised Dr. Nathan that he had returned to work on light duty in June 2010. Upon examination, Dr. Nathan noted tenderness and swelling over the right fourth finger PIP joint, with minimal decreased fist strength and digital dexterity. Dr. Nathan opined that the claimant was post right fourth finger fracture.
The claimant underwent an EMG/NCV study performed by Dr. Garg on August 10, 2010. The study showed moderate left carpal tunnel syndrome and mild right carpal tunnel syndrome.
The claimant filed a Form RFA-1 (Claimant's Request for Further Action) on August 24, 2010, stating that he sustained left moderate carpal tunnel syndrome and right mild carpal tunnel syndrome as a result of his work accident.
At an August 25, 2010 examination, Dr. Rose continued to note that the claimant had numbness and tingling in the right hand, and found positive Phalen's and Tinel's signs in the right wrist. Dr. Rose recommended right carpal tunnel release surgery. The record does not indicate that Dr. Rose examined the claimant's left hand or wrist.
Dr. Nathan examined the claimant again on October 27, 2010. He noted that the claimant reported that he last worked on July 26, 2010, and had been performing volunteer work since that time. Upon examination, Dr. Nathan noted positive Phalen's and Tinel signs in the right and left wrists. Dr. Nathan reported that he would need to review the emergency room records to comment on whether the claimant's carpal tunnel syndrome was causally related to his work accident. He noted that bilateral carpal tunnel release surgery was reasonable. He opined that the claimant did not suffer from any causally related disability.
Dr. Nathan filed an addendum to his October 27, 2010, report on December 8, 2010. He noted that he had reviewed the Form C-2 (Employer's Report of Work-Related Illness/Injury) and the emergency room records. Dr. Nathan opined that the carpal tunnel syndrome was not related to the claimant's work accident.
Dr. Rose testified by deposition on March 14, 2011, that he treated claimant on August 19, 2009, and diagnosed a dislocation and fracture of the right fifth digit. He next saw claimant on September 22, 2009, at which time he recommended that an EMG be performed based on claimant's complaints of numbness and tingling in his right hand. At an August 25, 2010, examination, claimant complained of numbness, tingling, decreased range of motion and weakness in his right hand. Upon examination claimant had a positive Phalen's test and positive Tinel's test. Based on his examination and the results of EMG, he diagnosed right carpal tunnel syndrome which required surgical intervention. Dr. Rose testified that claimant's right carpal tunnel syndrome was causally related to claimant's June 10, 2009, work accident. At an examination of claimant on November 19, 2010, he diagnosed left carpal tunnel syndrome.
On cross-examination Dr. Rose testified that it was impossible to determine whether claimant's carpal tunnel syndrome pre-existed his June 10, 2009, work accident. When questioned regarding the cause of the claimant's left carpal tunnel syndrome, Dr. Rose stated that it was due to the fact that the claimant was right hand dominant and had to compensate for his right hand injury by overusing his left hand. Dr. Rose admitted that the claimant never told him that he was overusing his hand, but stated that it was "common sense" that this would occur. Dr. Rose admitted that the claimant could have suffered from carpal tunnel syndrome before his work accident. Dr. Rose noted that traumatic carpal tunnel syndrome symptoms can take a two, to three months to become apparent. He noted that, while the claimant was totally disabled from his prior employment, he was not disabled from all work.
Dr. Nathan testified by deposition on March 21, 2011, that the claimant had only minor deficits and did not suffer from any causally related disability. He stated that he found no causal relationship because the claimant did not report a left or right wrist injury as a result of the original work accident, and denied numbness when he was treated at the emergency room. Dr. Nathan first stated that the EMG/NCV testing was performed two months after the claimant's accident, and therefore the findings supported his opinion that the carpal tunnel syndrome was pre-existing. Dr. Nathan withdrew this statement after being advised that the study took place over a year after the accident. Dr. Nathan admitted that trauma is a known cause of carpal tunnel syndrome. He also admitted that the claimant's fall could have injured the nerves in his hand.
The claimant testified at a hearing on May 13, 2011, that he was injured when he fell face first down a stairway and caught himself with both hands. The WCLJ amended the claim to include right wrist and right carpal tunnel syndrome injuries and authorized right carpal tunnel release surgery, but found no prima facie medical evidence regarding the left wrist and left carpal tunnel syndrome injuries. The WCLJ made awards and directed an attorney's fee. The WCLJ's findings were memorialized in an amended decision filed on May 19, 2011.
The carrier sought administrative review of the WCLJ's May 19, 2011 decision arguing, that the claim should not be amended to include the right wrist and right carpal tunnel syndrome, and that awards should be rescinded. Claimant also sought review of the WCLJ's decision, arguing that the claim should also be amended to include a consequential left carpal tunnel syndrome and to increase the attorney's fee awarded by the WCLJ.
Right Wrist/Carpal Tunnel Syndrome
"[A] claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). However, "where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a preexisting infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129  [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ). 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  [citations and internal quotation marks omitted]).
In the present case, the claimant presented sufficient credible evidence to amend the claim to include right wrist and right carpal tunnel syndrome injuries. In regard to the right wrist injury, the carrier's consultant, Dr. Wilson, diagnosed the claimant as suffering from a right wrist sprain on November 3, 2009. In regard to the right carpal tunnel syndrome injury, the claimant first reported numbness and tingling three months after the work accident, and no medical evidence indicates that the claimant experienced any such symptoms before the accident. Dr. Rose testified that determining whether the claimant had pre-existing carpal tunnel syndrome was not possible. Dr. Nathan testified that claimant's right carpal tunnel syndrome was not causally related based, in part, on the fact that the EMG/NCV study revealed even more severe carpal tunnel syndrome in the claimant's left wrist, which was not injured in the work accident. However, even if the claimant did suffer from right carpal tunnel syndrome prior to his work accident, the medical evidence supports a finding that he, at the very least, experienced an aggravation of his symptoms as a result of his fall.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claim should be amended to include right wrist and right carpal tunnel syndrome injuries.
Left Wrist/Carpal tunnel syndrome
With regard to the left wrist, the Full Board finds Dr. Rose's opinion unpersuasive. Dr. Rose testified that the claimant developed carpal tunnel syndrome because he was forced to overuse his left in as a result of the right hand injury. However, there is no medical evidence in the record indicating that the claimant complained of any symptomology related to the left wrist throughout his treatment with Dr. Rose. Thus, the Board Panel is not persuaded that the claimant developed left carpal tunnel syndrome as a result of overuse.
Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence that the claimant does not suffer from a consequential injury to the left wrist
Degree of Disability
With regard to the claimant's degree of disability, the Full Board credits Dr. Rose's opinion that the claimant is totally disabled from his regular work and partially disabled from other work. The Full finds this opinion persuasive as it is corroborated by the claimant's actual experience. The claimant was able to per from light duty work from January to July, 2010 despite his compensable disability. Only when his employer assigned him full duty work was the claimant unable to continue working.
A review of the record indicates that the claimant's representative requested a fee of $2,500.00 at the underlying hearing (Hearing Transcript, 5/13/11, p. 31) and was granted an award of $1,400.00. The WCLJ directed the claimant's representative to file an OC-400.1 form that day (Hearing Transcript, 5/13/11, p. 33). The claimant's representative did not object to the award at the hearing but now argues that the $1,400.00 fee was inordinately low considering the overall benefit to the claimant and the amount of work done by his counsel. Nor did the claimant's representative file a fee application on that day. Instead, an OC-400.1 form was only filed along with the application for review.
"Counsel fees for services rendered in a workers' compensation matter must be approved by the Board (see Workers' Compensation Law § 24) … [In] a contested matter …, where the requested fee is more than $450, there is no requirement that the attorney specifically state the time spent for the performance of his or her services (see 12 NYCRR 300.17[f]; compare 12 NYCRR 300.17[d]; [e]). Rather, the Board may approve a fee 'in an amount commensurate with the services rendered and having due regard for the financial status of the claimant and whether the attorney … engaged in dilatory tactics or failed to comply in a timely manner with board rules. In no case shall the fee be based solely on the amount of the award' (12 NYCRR 300.17[f])" (Matter of Pavone v Ambassador Transp., Inc., 26 AD3d 645 ).
Here, a Notice of Retainer (OC-400 form) indicating that the claimant had retained Pellegrini & Associates, LLC to represent him was filed on July 30, 2010. By that time, the claim had been established for an injury to the right pinky, the average weekly wage had been set, and the claimant had been awarded benefits for the period of July 6, 2009 to November 3, 2009, and continuing. Thereafter, on August 24, 2010, the claimant's counsel filed an RFA-2 form to address the issue of right carpal tunnel syndrome as a causally related condition. The OC-400.1 form submitted by the claimant's counsel indicates that 47 hours were spent on the case. The services provided included client interviews, drafting correspondence, reviewing correspondence and reports, phone calls with the claimant's physician, appearances at two hearings, attendance at two depositions, preparation of summations and preparation of the instant application for review. The claimant has not objected to the additional requested attorney fee. The Full Board finds that, in light of the aforementioned facts, the claimant's counsel is entitled to an additional $1,600.00 in fees and that the total $3,000.00 fee award is commensurate with the services rendered.
Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence that the claimant's representative is entitled to an additional $1,600.00 in attorney fees and that the total $3,000.00 fee award is commensurate with the services rendered.
ACCORDINGLY, the WCLJ amended decision filed on June 30, 2011, is MODIFIED to reflect a total attorney fee of $3,000.00 is payable to the claimant's counsel. The decision is otherwise AFFIRMED. The case is continued.