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Case # G1457309
Date of Accident: 06/10/2016
District Office: Albany
Employer: NYS Division of State Police
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 68691013
Date of Filing of Decision: 02/07/2018
Claimant's Attorney: Lekki, Hill, Duprey & Bhatt PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 29, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether this claim is barred by Workers' Compensation Law (WCL) 28.

The Workers' Compensation Law Judge (WCLJ) found that the date of disablement was June 10, 2016, which made the claim timely filed.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the date of disablement is October 24, 2013, making the claim barred by WCL 28.

The carrier filed an application for Mandatory Full Board Review on April 26, 2017, arguing that the claim should be found to be untimely, as claimant knew in 2013 that she had work-related carpal tunnel syndrome.

The claimant filed a rebuttal on May 25, 2017, asserting that the WCLJ and Board Panel majority correctly set the date of disablement on June 10, 2016.

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

FACTS

This is a controverted claim for bilateral carpal tunnel syndrome. The claimant filed her claim for compensation on June 20, 2016, asserting that she developed bilateral carpal tunnel syndrome from typing reports at work. The claimant's C-3 explains that she began having these symptoms in the Fall of 2013. The carrier controverted the claim based upon its assertion that the date of disablement should be set on October 24, 2013, which makes the claim time barred by WCL 28.

Claimant treated with her primary care physician, Dr. Desai, on October 24, 2013. The claimant presented with complaints of left elbow pain with numbness of the left hand, which has been going on for several months. The doctor took a history that the claimant had been using a computer at work for several hours each day. The doctor's assessment at the time was carpal tunnel syndrome, and he sent her for an EMG of the left hand. Dr. Desai did not offer an opinion on causal relationship.

The next medical report in the record is based on a June 10, 2016, examination by Dr. Lemley. In his report, Dr. Lemley noted that claimant had "developed discomfort, numbness and tingling involving the bilateral wrist and hand over the last 3 years." Dr. Lemley stated that claimant had "no risk factors for carpal tunnel syndrome other than the repetitive duties that she does at her job for the state police." Dr. Lemley diagnosed bilateral carpal tunnel syndrome which was causally related to claimant's employment and recommended that she undergo carpal tunnel release surgery.

On August 2, 2016, claimant was examined by the carrier's consultant, Dr. Ferraccio. In his IME-4 report, Dr. Ferracio concluded that claimant's carpal tunnel syndrome was idiopathic and was not causally related to her employment.

The claimant testified on September 14, 2016, that she works for the New York State Police as an investigator. She was originally hired as a patrolwoman on June 11, 2001, and was promoted to investigator on March 20, 2008. The claimant's current job duties have her investigating crimes, which involves documenting notes taken by patrolmen and performing field work. The claimant spent only 20% to 25% of her time in the field and the rest of the time was spent in the office typing notes into the department's computerized documentation system. She currently has symptoms of discomfort and numbness, which are more severe in the left hand than the right. She noticed that the symptoms were worse at night, and her hands felt this way no matter what she did at work. She had no specific trauma to the hands. She never stopped working because of her hand symptoms.

The claimant testified that after first noticing her hand problems in 2013, she went to her primary care physician, Dr. Desai, who sent her for a nerve conduction velocity study of the left hand. She continued working and did not seek out any further care until June 2016. She sought further care in 2016 because the hand pain began to wake her up at night and she lost all feeling in her hands. Her symptoms were initially limited to her left hand, but she now has symptoms in both hands. She told Dr. Lemley about her work activities including how much she typed each day. Dr. Lemley told the claimant that her bilateral carpal tunnel syndrome is likely caused by her work activities, specifically the typing. The claimant did not recall if her primary care physician told her the left-hand symptoms were caused by her work activities. The claimant told her current supervisor about the bilateral hand pain the day after she saw Dr. Lemley. She had previously discussed her hand pain with her supervisor in 2013.

On cross-examination, the claimant testified that her hobbies include maintaining a potted vegetable garden, camping in a camper, and cooking. The claimant admitted she used to golf in her twenties, which she did once a week during the summer months, and that she had no hand problems during this time. She spends about an hour or two everyday on her home computer or smartphone outside of work. The claimant admitted that in 2013 it was her impression that her carpal tunnel syndrome was related to her job duties after talking to Dr. Desai. She did not file a workers' compensation claim in 2013. Her symptoms never went away.

The claimant's supervisor testified on September 14, 2016, that he had worked for the New York State Police for 29 years and has been a senior investigator since 2013. The supervisor testified that the claimant told him about her hand problems in May or June of 2016. The claimant told her prior supervisor about similar complaints in 2013. The claimant spends six to eight hours per day typing and taking notes at work.

Dr. Lemley was deposed on September 16, 2016, and testified that he diagnosed the claimant with causally related bilateral carpal tunnel syndrome. The doctor took a history that the claimant worked as an investigator with the New York State Police, which involved repetitive activities with a computer. The doctor only saw the claimant on June 10, 2016.

The WCLJ, in a reserved decision filed November 23, 2016, established the claim for bilateral carpal tunnel with a date of disablement of June 10, 2016, the date claimant saw Dr. Lemley.

The carrier requested administrative review.

LEGAL ANALYSIS

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.

Pursuant to WCL 28 and 42, the Board has some 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.).

Here, the Full Board finds that the preponderance of the evidence supports setting the date of disablement at June 10, 2016, because that was the first date on which a doctor clearly and unequivocally diagnosed work-related bilateral carpal tunnel syndrome and recommended that she undergo carpal tunnel release surgery. As this claim was filed within two years of June 10, 2016, it was timely.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed November 23, 2016, is AFFIRMED. No further action is planned at this time.