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Workers' Compensation Board

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Case # G1081445
Date of Accident: 10/13/2008
District Office: NYC
Employer: Human Resources Admin
Carrier: CNY Other Than Ed, HEd Water
Carrier ID No.: W847008
Carrier Case No.: 00691440990
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Munawar & Andrews-Santillo LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 2, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether claimant's injury is an occupational disease or an accidental injury; and
  2. whether the claim was timely filed in accordance with Workers' Compensation Law (WCL) § 28.

The Workers' Compensation Law Judge (WCLJ) found that the claimant sustained an accidental injury and disallowed the claim because it was untimely filed.

The Board Panel majority reversed the WCLJ's decision and established the claim for occupational injuries to claimant's elbows and hands, with a May 29, 2015, date of disablement.

The dissenting Board Panel member would have affirmed the WCLJ.

On June 1, 2016, the self-insured employer filed a request for Mandatory Full Board Review.

No timely rebuttal was received.

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

FACTS

On March 10, 2014, the claimant filed a C-3 (Employee Claim) alleging that he had developed cubital tunnel syndrome, stiffness, and cramps from his elbows to his fingers as the result of typing and resting his elbows on his desk in the course of his employment as a job opportunity specialist. The self-insured employer (SIE) controverted the claim.

The record contains several medical reports documenting earlier treatment. In a note dated January 30, 2008, Dr. Lebret reported that the claimant was having "medical problems with his hands that will require surgery" and asked that the claimant be permitted to take frequent rests while writing. On August 10, 2010, the claimant was examined by orthopedic surgeon, Dr. Ziets, who reported that the claimant had had numbness and tingling in both hands for the past five years, which the claimant had attributed to a course of medication he had received. Dr. Ziets further reported that the claimant had undergone a nerve study in 2007, and had been diagnosed with severe bilateral cubital tunnel syndrome at that time. The doctor recommended surgery, acknowledging that the claimant had already declined surgery years prior.

On April 18, 2013, Dr. Ziets reported that the claimant's condition had worsened. Dr. Ziets observed clawing and grip weakness in the claimant's right hand. The claimant was diagnosed with carpal tunnel syndrome, and continued to suffer from the previously diagnosed cubital tunnel syndrome. The doctor continued to recommend surgery. On October 22, 2013, the claimant was examined by neurologist, Dr. MacGowan. Among other things, Dr. MacGowan noted that he had examined the claimant six years prior, at which time he took a detailed history of extensive medical treatment for unrelated conditions, and also noted that the claimant had a tendency to lean on his elbows while working. Dr. MacGowan did not specify a cause for the claimant's hand and forearm problems, and recommended that the claimant proceed with surgery.

On April 22, 2014, the claimant submitted a copy of correspondence that he had provided to his employer advising that he believed he had developed cubital tunnel syndrome due to leaning on his elbows while performing his work, and while typing. He advised the employer that his complaints had started in 2007, but that his symptoms had since worsened, and had been interfering with his typing since October of 2013. The claimant's notice is not dated, but was provided after his claim was assigned a WCB number.

On November 21, 2014, the claimant was examined by a different orthopedic surgeon, Dr. Wright, reportedly hoping to try conservative treatment measures before going forward with surgery. The claimant described difficulty with his activities of daily living, and difficulty performing his work activities. The claimant was given a splint, and physical therapy was prescribed.

In a report dated April 3, 2015, Dr. Wright noted that the claimant's job required him to perform a significant amount of typing. Dr. Wright diagnosed bilateral cubital and carpal tunnel syndromes, and indicated "I believe the patient's symptoms of compression neuropathy are directly related to his overuse at work. The patient works as a social worker, which requires a significant amount of typing during. The patient's symptoms of cubital tunnel and carpal tunnel syndrome should be added to the case."

At a July 14, 2015, hearing, the claimant testified that as of the date of his disability retirement on May 29, 2015, he had worked for the SIE as a case worker and job opportunity specialist for a total of 17 years. His duties were more or less the same in both titles, and required him to spend his days interviewing clients and inputting their responses into the computer system. The focus was to prevent evictions and homelessness. In his most recent position, 90% of his days were spent typing. In 2006 and 2007, he began feeling pins and needles and stiffening in his hands, fingers and elbows. He initially attributed the complaints to a course of medication he had been receiving for an unrelated medical condition. After determining that his condition developed as the result of his repetitive work duties, he provided the aforementioned written notice to his employer and filed a workers' compensation claim.

During cross-examination, the claimant acknowledged that in 2008, Dr. Lebret, his primary care doctor, told him that his complaints were caused by repetitive motion at work. Dr. Lebret suggested that he lighten his work, or slow down. The claimant continued to work, and only missed time from work for medical visits, until he retired. The claimant has other medical conditions, which are the result of separate work-related injuries. When he was examined for his disability retirement, all of his medical conditions, including his bilateral carpal and cubital tunnel syndrome, were considered. He was never notified whether the authorization for his retirement was based upon any one particular condition.

At the conclusion of the proceedings, the SIE was precluded from producing an opinion from an independent medical examiner due to its failure to timely comply with a prior direction to do so. The parties provided summations, and the WCLJ reserved decision.

In a reserved decision filed on July 17, 2015, the WCLJ disallowed the claim. The WCLJ found that the claimant had failed to demonstrate a recognizable link between his employment and his disability. The WCLJ found that the claimant may have suffered a repetitive trauma accidental injury; however, as the claimant admitted he had been advised that his condition was related to that repetitive trauma in 2008 or 2009, yet failed to file his claim until March of 2014, the claim was time barred under WCL § 28.

In his application for administrative review, the claimant argued that the repetitive typing that he performed was a distinct feature of his employment, as his job was clerical in nature, and that the unrefuted medical evidence supports the claimant's occupational disease claim. Furthermore, since the claim is one of occupational disease, the date of disablement must be set in order to determine whether the claim was timely filed. In this case, the claimant argued that May 29, 2015, the first date of causally related lost time, or disability, is the most appropriate date of disablement, and thus the claim was timely filed. The claimant also pointed out that even though there was suspicion in 2008 that his work duties may have caused his injuries, there was no definitive medical evidence to support such a conclusion until 2014. Lastly, the claimant argued that the employer was not prejudiced by the timing of the claimant's notice.

No timely rebuttal was received

LEGAL ANALYSIS

Occupational Disease versus Accident

To support a claim for an occupational disease, the claimant must demonstrate "a recognizable link between his or her condition and a distinctive feature of his or her employment" (Matter of Camby v System Frgt., Inc., 105 AD3d 1237 [2013] [internal quotation marks and citation omitted]; see Matter of Bates v Marine Midland Bank, 256 AD2d 948 [1998])" (Matter of Jones v Consolidated Edison Co. of N.Y., Inc., 130 AD3d 1106 [2015]).

In Jones, the Court noted that "[c]laimant worked for the employer for 42 years as a customer service representative. In connection with his duties, claimant would answer multiple telephone calls a day and cradle the telephone between his shoulder and neck while simultaneously using the computer to input customer information" (Jones, 130 AD3d 1106 [2015]). The Court affirmed the Board's decision to establish the claim as an occupational disease, noting the medical evidence that "established that claimant's cervical injury was causally related to the nature of his employment activities [and finding] that the repetitive nature of claimant's employment duties caused [his] disability" (id.).

Here, although the claimant may have initially believed that his injuries arose in connection with leaning on his elbows at work, the unrefuted credible medical evidence upon which this claim is based clarified that it was the repetitive typing that the claimant performed at work that caused his development of carpal and cubital tunnel syndromes. Moreover, the claimant has credibly testified that repetitive typing, which he engaged in for 75 - 90% of each workday, is a distinctive feature of his employment as a social worker. The SIE has failed to produce any contrary evidence. For these reasons, the Full Board finds that claimant's injuries are occupational diseases within the meaning of the Workers' Compensation Law.

Timely Claim Filing

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 and after the claimant knew or should have known that the disease is or was caused by the employment (Matter of Patterson v Long Is. Jewish Med. Ctr., 296 AD2d 774 [2002]). Therefore, to determine the applicability of WCL § 28 to an occupational disease claim, three pieces of information generally are necessary: (1) the date of disablement, (2) the date on which the claimant knew or should have known that the condition was related to employment, and (3) the date on which the claim was filed.

It is well settled that the Board has 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 [1996]; Matter of Hastings v Fairport Cent. School Dist., 274 AD2d 660 [2000], lv dismissed 95 NY2d 926 [2000]). "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 [1989], lv denied 75 NY2d 709 [1990]).

The Board has been affirmed when it has selected as the date of disablement the date of first medical treatment (Matter of Fredenburg v Emerson Power Transmission, 2 AD3d 1129 [2003]), the date that a physician "definitively concluded" that a condition was work related (see Hastings, 274 AD2d 660 [2000]), the date of claimant's first causally related lost time (see Matter of Glasheen v New York State Dept. of State, 239 AD2d 792 [1997]), and the date claimant permanently ceased working for the employer, even though he had previously had causally related lost time (see Matter of Cummings v Tenneco Chems. Div., Am. Plastics, 53 AD2d 944 [1976]). According to the Appellate Division, 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 of the Workmen's Compensation Law would thereby be furthered" (id.).

In this case, although the claimant suspected that the cause of his condition might involve his work duties in or around 2008, the first medical report containing the claimant's treatment history and work activities that clearly related the claimant's injuries to such work activities is Dr. Wright's report of April 3, 2015. Moreover, claimant did not miss any time due to his injuries prior to taking a disability retirement on May 29, 2015. Accordingly, the Full Board finds that the preponderance of the evidence supports a date of disablement of May 29, 2015. Since the claimant filed his claim prior to the date of disablement, the claim is not time barred.

CONCLUSION

ACCORDINGLY, the WCLJ's reserved decision filed on July 17, 2015, is REVERSED. The claim is established for an occupational disease of the bilateral elbows and hands, with a date of disablement of May 29, 2015. The case is continued.