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Case # G0951117
Date of Accident: 03/09/2015
District Office: Binghamton
Employer: Lowe’s Home Centers, Inc.
Carrier: Lowe’s Home Centers, Inc.
Carrier ID No.: W515506
Carrier Case No.: B562503691000101625
Date of Filing of Decision: 10/27/2016
Claimant's Attorney: Learned Reilly Learned & Hughes 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 on April 25, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether there was sufficient medical evidence to establish this case for occupationally related right carpal tunnel syndrome.

The Workers' Compensation Law Judge (WCLJ) found that the case should be disallowed because of the lack of medical evidence to support a finding of causal relationship.

The Board Panel majority reversed the WCLJ's decision and found that the claimant's work activities caused right carpal tunnel syndrome and that the claim was timely because it was filed within two years of the date of disablement, which was set as May 28, 2015.

The dissenting Board Panel member would find that the claimant failed to prove causal relationship for the right carpal tunnel syndrome, and would affirm the WCLJ's decision.

In the carrier's application for Mandatory Full Board Review filed May 16, 2016, it argues that the date of disablement should be set at November 19, 2012, the date that the claimant was diagnosed with carpal tunnel syndrome, that the claimant should have known that her carpal tunnel syndrome was work related at that time, and therefore the claim should be disallowed because it is time barred. The carrier further argues that the claimant's carpal tunnel syndrome is not causally related based on the credible medical evidence and the application of section C.5 of the Board's Medical Treatment Guidelines for carpal tunnel syndrome.

A timely rebuttal was not filed.

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

FACTS

This is a controverted claim for right carpal tunnel syndrome that the claimant alleged was due to her constant use of a computer at work for twelve years.

The claimant testified on August 24, 2015, that she worked for the employer for fifteen years, and she has been designing kitchens on a computer for the last twelve years, which requires her to constantly use a mouse and keyboard. In 2012, the claimant treated with Dr. Cassetta for her right hand. The claimant had symptoms of numbness and swelling at night, and in the morning her wrist would be swollen and tingle. The claimant testified that Dr. Cassetta could not diagnose the wrist and he referred her to a specialist, who the claimant did not see at that time. The claimant testified that she went back to Dr. Cassetta in 2015, and the doctor told her that her right wrist condition was caused by her work duties, which was the first time a doctor told her it was a work-related condition. The claimant testified that she previously broke both wrists in a bicycle accident sixteen years earlier.

On cross-examination, the claimant admitted she was diagnosed with type 2 diabetes at seventeen years old, and the condition is well controlled by medication. With regard to the earlier bicycle accident, the claimant testified that her wrists were casted for three weeks and she had no residual symptoms after they healed. The claimant has a computer at home, but she does not use it very often. The claimant has no hobbies other than gardening.

With regard to her work activities, the claimant testified she works forty hours a week at a computer station. The computer station has a tuck away keyboard, a mouse and a monitor on the right side, which she described as an awkward set up. The claimant has been working on the computer more in the recent years, and she used the mouse with her right hand until her symptoms began. When questioned by the WCLJ, the claimant confirmed that she is right hand dominant. She also confirmed that almost all her work tasks involved using a computer. The claimant confirmed that her right hand bothers her when she works.

Dr. Remec testified that he examined the claimant's right wrist for the carrier on July 29, 2015. The doctor testified that the claimant's history and examination were consistent with right carpal tunnel syndrome, but he found that it was not causally related based upon the New York State Guidelines. Additionally, the doctor testified that the medical literature does not support causal relationship between carpal tunnel syndrome and keyboarding activity. The doctor testified that there is nothing in the claimant's medical history showing she had a forceful and repetitive use of her hands. The claimant did not have a history of using her hands and wrists against resistance, with force, nor has she been exposed to strong vibrations. The doctor also testified that diabetes is associated with increased risks for carpal tunnel syndrome. Dr. Remec found no causally related disability or need for treatment.

On cross-examination, Dr. Remec testified that the claimant had a positive Phalen's sign. The doctor admitted that he did not ask how long the claimant typed for, nor did he ask her how long her shifts were. Additionally, the doctor never asked the claimant about the ergonomic setup of her work station. The doctor then admitted that he made his opinion of no causal relationship based upon the criteria listed in section C.5 of the medical treatment guidelines for carpal tunnel syndrome. The doctor admits that the claimant repeatedly used her hands at work and the keyboard did provide some minimal resistance, but he felt that this did not meet the guidelines requirements. The doctor then supported his conclusion of no causal relationship by quoting the medical literature, without mentioning a specific study or article.

Dr. Cassetta, the claimant's primary care physician, testified that he treated the claimant for her right carpal tunnel syndrome. The claimant presented with complaints of pain and numbness in her hands. The doctor took a history that the claimant's job involved using a keyboard and mouse for most of her work day. During the February 18, 2015, office visit, Dr. Cassetta suspected the claimant had right carpal tunnel syndrome and sent her to Dr. Graham, who confirmed the diagnosis on March 2, 2015. Dr. Cassetta testified that the right carpal tunnel syndrome is causally related to her work activity, which he reported on May 28, 2015.

On cross-examination, Dr. Cassetta confirmed that he has been the claimant's primary care physician for almost twenty years. The doctor admitted that he saw the claimant on November 19, 2012, for complaints of worsening grip strength and dropping things. The doctor referred the claimant to an occupational doctor because he thought the symptoms could be work related, but the claimant did not see that doctor. During this visit the doctor noted that the claimant had atrophy at her wrists. The doctor testified that he did not treat the claimant's right wrist between November 19, 2012, and February 18, 2015. Dr. Cassetta confirmed that the claimant had no arthritis or wrist trauma. The doctor confirmed that the claimant has diabetes mellitus, but not hyperthyroidism.

The report of claimant's treatment with Dr. Cassetta on November 19, 2012, indicates that the claimant presented with complaints of numbness in both hands that is worse at night, decreased grip strength and a history of dropping things. Dr. Cassetta diagnosed the claimant with carpal tunnel syndrome and referred the claimant to a hand surgeon.

Dr. Reed's September 18, 2013, office visit report is also contained in the Board file. The claimant presented wearing a wrist splint and having complaints of right wrist pain. The doctor took a history that the claimant had a sudden onset of right wrist pain at work on September 18, 2013, while lifting a cabinet and turning it with both hands. On examination the claimant's right wrist had no tenderness, gross abnormality or deformity. The claimant had a full painless range of motion and normal muscle strength. The doctor diagnosed the claimant with a work-related right wrist sprain.

The Board file contains a medical report based on claimant's treatment with Dr. Mainolfi's on April 24, 2015. During that visit, the claimant reported bilateral wrist pain that was more severe on the right side, but the pain had no inciting event. The claimant reported using a computer keyboard for many years. The right hand examination showed a positive Tinel's sign, positive Phalen's test, weakness in grip strength, and numbness in the medial distribution. The left hand had a negative Tinel's sign and a negative Phalen's test.

Dr. Cassetta's May 28, 2015, medical report states that the claimant presented with complaints of pain and numbness in her right hand. The claimant reported spending her work days using a mouse and keyboard. On examination, the claimant has pain and numbness in the typical carpal tunnel distribution. The doctor diagnosed the claimant with carpal tunnel syndrome, and he reported that her daily work tasks have contributed to the onset of this condition.

In a decision filed October 27, 2015, the WCLJ stated that "[b]ased on the lack of credible controlling medical evidence of causal relationship, I disallow the claim."

LEGAL ANALYSIS

Section 28

"The Workers' Compensation Law provides that 'the date of disablement shall be such date as the board may determine on the hearing on the claim' ([WCL] § 42). It is well settled that the fixing of the date of disablement is a factual question for the Board and the Board has 'some latitude in the choice of dates as long as its determination is founded on substantial evidence' (Matter of Scimeni v Welbilt Stove Co., 32 AD2d 364 [1969]; see, Matter of Gude v Elm Coated Fabrics Div. of Grace Co., 79 AD2d 786 [1980]; Matter of Falcone v Western Elec. Co., 72 AD2d 644 [1979], lv denied 48 NY2d 612 [1980]). 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]).

Pursuant to Workers' Compensation Law (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.

The Full Board finds that the date of disablement is properly set on May 28, 2015, which was the date of Dr. Cassetta's medical report stating that the claimant's carpal tunnel syndrome was causally related. The carrier's contention that the date of disablement should be November 19, 2012, is not persuasive because there was only a suspicion of carpal tunnel syndrome caused by her work activities, which is confirmed by the doctor's testimony that he referred the claimant to an occupational doctor because he was uncertain. Additionally, the doctor testified he did not treat the claimant's right wrist between November 19, 2012, and February 18, 2015. The claimant's filing of the C-3 for this claim on July 3, 2015, has satisfied WCL § 28, making the claim timely filed.

Causal Relationship

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

The Medical Treatment Guidelines (MTG) provide guidance for the treatment of carpal tunnel syndrome. However, the information provided in the MTG should not be used by the Board when determining whether the record contains sufficient evidence of causal relationship (Matter of Genesee County Probation Dept., 2016 NY Wrk Comp G1190667; Matter of NYS Info Tech Services, 2016 NY Wrk Comp G1201363; see also Matter of Yanas v Bimbo Bakeries, 134 AD3d 1321 [2015]).

The carrier's reliance upon section C.5 of the medical treatment guidelines for carpal tunnel syndrome is misplaced as the controlling case law dictates that this provision is not the standard to be applied when determining causally relationship for carpal tunnel syndrome.

The carrier's medical examiner's opinion of no causal relationship relies on either a vague reference to the medical literature or a specific reference to the medical treatment guidelines, which the controlling case law does not permit to be used for this purpose. Furthermore, the carrier's medical examiner failed to ask how long the claimant typed for, how long her shifts were, and never asked about the ergonomics of her work station. The claimant's treating doctor, on the other hand, relied upon an accurate history of her work activities when he testified that the right carpal tunnel syndrome was causally related.

Therefore, the Full Board finds that the preponderance of the evidence supports establishing the claim for an occupational disease involving right carpal tunnel syndrome.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 27, 2015, is REVERSED, and the case is established for right carpal tunnel syndrome and the date of disablement is set as May 28, 2015. No further action is planned by the Board at this time.