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Case # 60412552
Date of Accident: 08/02/2004
District Office: Syracuse
Employer: Utica Alloys Inc
Carrier: Commercial Insurance Company
Carrier ID No.: W059000
Carrier Case No.: 40806730 VS
Date of Filing of Decision: 11/21/2013
Claimant's Attorney: Daniel A. Newman, Esq.
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on October 22, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 19, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether, in light of the Workers' Compensation Law Section 32 agreement entered into by the carrier and the claimant which provided that carrier would remain liable for causally related medical treatment, the carrier is liable for medical expenses for treatment by Dr. Gould relating to Reflex Sympathetic Dystrophy (RSD), chronic pain syndrome, and/or complex regional pain syndrome.

The Workers' Compensation Law Judge (WCLJ) found that Dr. Gould's medical report was prima facie evidence of causally related RSD, and directed the carrier to produce a consultant's report on the issue.

The Board Panel majority affirmed, finding that the WCLJ properly continued the case for the carrier to produce a consultant's medical report on the issue of causally related RSD.

The dissenting Board Panel member found that pursuant to the terms of the Section 32 agreement, the carrier is not required to pay for medical bills pertaining to RSD, a non-established condition.

On March 18, 2013, the carrier filed a request for Mandatory Full Board Review. The claimant filed a rebuttal on April 17, 2013.

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

FACTS

This case is established for bilateral carpel tunnel syndrome; bilateral arms, shoulders and elbows; and a consequential neck injury. These injuries were sustained by the claimant as a result of the repetitive motion that the claimant engaged in during the course of her employment as a metal sorter. The claim was established as an occupational disease and the date of disablement has been set as August 2, 2004.

In progress reports based on examinations performed on October 1, 2009, October 22, 2009, October 27, 2009, October 30, 2009, November 3, 2009, November 5, 2009, November 10, 2009, November 12, 2009, November 12, 2009, December 1, 2009, and December 3, 2009, claimant's treating physician, Dr. Gould, diagnosed the claimant with causally RSD of the upper limb. The carrier did not object to the bills for any of these examinations on the ground that the treatment was not causally related, and apparently paid the bills.

The parties entered into a Section 32 Agreement on November 12, 2009. The Agreement contains the following provisions:

Paragraph 6: The claimant agrees to withdraw and waive any present or future claim for New York State Workers' Compensation benefits, including but not limited to, lost time awards, reduced earnings, permanency and/or any other benefits relating to the indemnity portion of this claim as of the Notice of Approval of the Section 32 Agreement with respect to WCB case no. 60412552 for a date of disablement of 08/02/04.

Paragraph 7: The parties stipulate the claimant did not sustain any other related, either direct or consequential, injuries with respect to WCB case no. 60412552 for a date of disablement of 08/02/04.

Paragraph 9: This Section 32 Agreement only resolves the indemnity portion of the claim. Consequently, the carrier shall remain liable for causally related medical treatments relating to the 08/02/04 date of disablement for which this case has been established subject to the New York Fee Schedule.

Paragraph 12: The claimant expressly releases the carrier from any further liability that they may have otherwise had in the future to pay for indemnity benefits relating to the 08/02/04 date of disablement for which this claim has been established.

In a Notice of Approval filed on January 11, 2010, the WCLJ approved the parties' Section 32 agreement.

In a narrative report based on May 11, 2011, examination, Dr. Gould indicated that claimant "reports burning, constant throbbing (6/10) neck pain that is radiating to the arms. She is presenting for followup [sic] with neck pain, complex regional pain syndrome..." Dr. Gould diagnosed claimant with "complex regional pain syndrome" and "Chronic pain syndrome left greater than right arm pain..." In the accompanying Form C-4.2 (Doctor's Progress Report), Dr. Gould listed a diagnosis of chronic pain syndrome.

The carrier filed a C-8.1 [Notice of Treatment Issue(s)/Disputed Bill Issue(s)], objecting to the bill for the treatment rendered by Dr. Gould on May 11, 2011, on the ground that it was for a condition that was not causally related to the compensable injury.

The carrier subsequently disputed bills for treatment rendered by Dr. Gould on August 9, 2011, and September 8, 2011, relating to a diagnosis of RSD "of the upper limb," on the ground that the treatment was not for a causally related condition.

In a note dated June 10, 2011, Dr. Gould wrote,

[claimant] has a history of bilateral carpal tunnel release in 2005, 2006, and bilateral transposition of the ulnar nerves in 2006. She subsequently has developed complex regional pain syndrome from this. The complex regional pain syndrome is related to the work injury. She has also been diagnosed with chronic pain syndrome. The patient has constant burning, numbness and tingling of the left side of the neck radiating to the left arm and back of head.

A hearing was held on October 19, 2011, to consider, among other things, the C-8.1s filed by the carrier with respect to treatment rendered by Dr. Gould. At that hearing, the WCLJ found that the Section 32 agreement did not preclude the claim being established for a consequential injury, held the C-8.1 objections in abeyance, found prima facie medical evidence for RSD, directed the carrier to obtain a consultant's reports on the issue of whether RSD was causally related, and continued the case. The carrier sought administrative review of those finding, arguing that the Section 32 agreement barred claimant from rising consequential injuries.

LEGAL ANALYSIS

Paragraph 9 of the Section 32 agreement entered into by the claimant and the carrier provides,

This Section 32 Agreement only resolves the indemnity portion of the claim. Consequently, the carrier shall remain liable for causally related medical treatments relating to the 08/02/04 date of disablement for which this case has been established subject to the New York Fee Schedule.

Prior to the approval of the section 32 agreement, the claim had been established for bilateral carpel tunnel syndrome; bilateral arms, shoulders and elbows, and the neck; the claimant had also been diagnosed with and received treatment for RSD in his upper extremity, which Dr. Gould found to causally related to claimant's established accident. The carrier did not object to treatment for RSD of the upper limbs and apparently paid for that treatment.

The treatment in question, which the carrier alleges is for a condition which is not causally related to claimant's established accident, was for pain claimant was experiencing in her arms and neck. Whether these symptoms are characterized as RSD, chronic pain syndrome, or complex regional pain syndrome, it is clear that these symptoms manifested themselves prior to the Section 32 agreement, involve sites of injury for which this claim is established, and are casually related to claimant's compensable work-related accident. These symptoms and their treatment, therefore, constitute "causally related medical treatments relating to the 08/02/04 date of disablement for which this case has been established" (paragraph 9 of the Section 32 agreement), and the carrier remains liable for that treatment.

Therefore, the Full Board finds that the treatment in question rendered by Dr. Gould is causally related to claimant's established accident and that the carrier is liable for that treatment. C-8.1s are found in favor of Dr. Gould.

CONCLUSION

ACCORDINGLY, the WCLJ's amended decision filed November 10, 2011, is RESCINDED. The Full Board finds that the carrier is liable for the treatment rendered by Dr. Gould which is in dispute and the C-8.1s are found in favor of Dr. Gould. The direction for the carrier to obtain a consultant's report and the continuation of the case are RECINDED.

No further action is planned by the Board at this time.