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Case # G0937744
Date of Accident: 11/12/2014
District Office: Rochester
Employer: Allied Frozen Storage, Inc.
Carrier: Acadia Insurance Company
Carrier ID No.: W010250
Carrier Case No.: 20191454
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: Vincent J. Criscuolo & Associates
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed January 10, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the case should be disallowed or continued to allow for further clarifying medical evidence of the treating doctors to be produced.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim for the bilateral carpal tunnel syndrome because there is no evidence that the claimant's work required continuous repetitive, forceful hand motions or vibratory hand tools.

The Board Panel majority rescinded the WCLJ decision without prejudice and continued the case for claimant to produce clarifying medical evidence.

The dissenting Board Panel member would affirm the WCLJ.

The carrier filed an application for Mandatory Full Board Review on February 8, 2017, arguing that the claimant received all the due process he was entitled to before the claim was properly disallowed.

The claimant filed a rebuttal on March 10, 2017, asserting that the Board Panel majority correctly returned the case to the hearing calendar to consider the medical evidence rather than denying the claim based upon an improper application of the medical impairment guidelines.

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

FACTS

This is a controverted claim for an occupational bilateral carpal tunnel syndrome. The claimant filed a C-3 (Employee Claim) on May 14, 2015, which asserts that repetitive motion at claimant's job as a warehouse supervisor caused numbness and pain in his hands and wrists.

The claimant testified on September 29, 2015, that he worked for the employer, a frozen storage facility, since January 2001, first as a dock leader for a year and then as a warehouse supervisor. He worked forty hours a week, with overtime and weekend shifts as necessary. His job duties involved checking in trucks, billing trucks out, supervising employees and controlling inventory. Physically, the claimant was required to lift 45 to 50 pounds infrequently, and he helped on the docks every few weeks. Most of his days are spent using the computer checking trucks in and out, as well as tracking where products are in the warehouse. He spends an average of four to five hours a day on the computer and in the summer he helps in the warehouse by operating a fork truck about four hours a day, which requires constant use of the hands to control the machine. His hand started to become numb around March 2014. The claimant began having arm pain that kept him up at night near the end of that summer. The claimant went to his primary care physician, who believed that he had carpal tunnel syndrome and sent him for EMG testing. He went to a hand surgeon who confirmed that he had work-related carpal tunnel syndrome. He spoke with the employer about his hands, and he told the operations manager that his hand surgeon was recommending surgery and that these problems were work related. The operations manager told him to see the general manager about these issues. The claimant told the general manager the same thing, and the general manager contacted the safety manger because he was unsure how to handle this claim.

On cross-examination, the claimant confirmed that he supervises three to five employees, and previously did the same type of work for another frozen foods company. He is right handed and he used the computer keyboard all day long at work. Fifty percent of the time he types and fifty percent of the time he uses a mouse. The claimant admitted he does not use the keyboard constantly. The claimant admitted he had previously broken a bone in the top of his left hand, and some episodes of sprains in his hands. The claimant confirmed that he reported a history to Dr. Miraloglu in November 2014 that he felt a pop in his wrist two weeks earlier as he was opening a door, which caused pain to shoot into the elbow. The claimant also told the doctor that he has numbness in his hand and elbow, and he cannot make a fist. He has had no accidents after developing the symptoms, and that his hands lose feeling when he types or operates the fork lift. The claimant denied having diabetes, neck problems or pursuing outside activities that involved torqueing or twisting the wrist.

The employer's operations manager testified on September 29, 2015, that he has been the claimant's immediate supervisor since November 2014. The claimant told him he had wrist problems, but not their cause. The operations manager corroborated claimant's testimony that claimant was always at his desk, but he did not know the percentage of time the claimant spent typing. The operations manager corroborated the claimant's testimony about the controls of the fork lift, but disputed the extent of time that the claimant operated it.

The general manager testified on September 29, 2015, that the claimant told him about his hand pain, but not what caused it. The general manager did not file an injury report. He testified that he believes the claimant overstated the amount of time he spent typing and operating a fork lift.

Dr. Sbitany was deposed on December 23, 2015, and testified that he first saw the claimant on March 30, 2015, after he was referred by his family physician for complaints of hand pain. The doctor took a history that the claimant was a right handed man who works with computers, and he had one to two years of bilateral hand pain. The claimant reported no history of diabetes, thyroid disorder or other issues. The claimant's examination findings were highly suggestive of a diagnosis of bilateral carpal tunnel syndrome, which was confirmed by EMG/NCV testing. When asked his opinion with respect to causal relationship, Dr. Sbitany responded that "from his history and what he told me and the history of repetitive motion and lifting at work, I have to say that I'm leaning toward bilateral carpal tunnel syndrome which is related to the activities that he does at his place of work." The doctor testified that keyboarding can cause carpal tunnel syndrome because it is a repetitive motion and requires some exertion of force. The doctor had no history of claimant performing work activity involving constant firm gripping of objects or exposure to strong regular vibrations.

Dr. Hammert was deposed on November 11, 2015, and testified that he had been treating the claimant since June 23, 2015, for his bilateral carpal tunnel syndrome. The claimant presented with a history of increasingly symptomatic wrist pain and an EMG test confirmed the presence of bilateral carpal tunnel syndrome. The doctor testified that the claimant's activities at work seemed to have exacerbated and aggravated his hand symptoms. With regard to causal relationship, Dr. Hammert testified, "I can't tell you exactly what caused the carpal tunnel; often is multifactorial, and can be cause by a variety of things. So seeing him at one point in time, I can't pinpoint exactly what caused it." With regard to his understanding of the claimant's work activities, the doctor testified that he understood the claimant worked for the employer for fifteen years, and his job involved driving forklifts, loading carts and repetitive activities, including typing on a computer. The doctor did not know how long he types, but he does know the claimant first noticed his symptoms while working. The doctor testified that being on a computer for four to five hours a day can cause an increase or exacerbation of his hand symptoms.

In a decision filed February 1, 2016, resulting from a hearing on January 26, 2016, the WCLJ indicated that the record was closed and decision reserved, and directed the parties to submit memoranda of law by January 30, 2016. Claimant had previously filed a memorandum of law dated December 23, 2015, requesting that the claim be established based on the record. Claimant did not request the opportunity to provide additional medical evidence.

In a reserved decision filed February 23, 2016, the WCLJ disallowed the claim, finding that there was "no evidence that the claimant's work required continuous repetitive, or forceful hand motion or the use of vibrating tools." Additionally, the WCLJ made a finding that the treating doctors were not sufficiently knowledgeable about the claimant's work activities to support their opinions that the carpal tunnel syndrome is causally related.

The claimant requested administrative review, asserting that he provided sufficient evidence to prove that his bilateral carpal tunnel syndrome is related to his work activity. Additionally, the claimant asserts that the WCLJ improperly used the criteria of the medical treatment guidelines for carpal tunnel syndrome to disallow the claim as not being causally related.

LEGAL ANALYSIS

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]). Insofar as the WCLJ premised his decision to disallow the claim based on the failure of claimant to produce medical evidence sufficient to meet the standard purportedly required by the carpal tunnel MTG, that decision was in error.

Although claimant was not required to prove that his carpal tunnel syndrome resulted from "extensive, forceful, repeated or prolonged use of the hands and wrists" at work (Carpal Tunnel MTG, Section C.5, p. 10), he nonetheless had the burden of producing sufficient credible medical evidence of causal relationship. "It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]). '[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 [1997], affd, 90 NY2d 914 [1997]; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 [2005])" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]).

Here, the opinions of Dr. Sbitany and Dr. Hammert were not sufficient to support a finding of causal relationship. Dr. Sbitany, when asked his opinion on causal relationship, stated that he was "leaning toward bilateral carpal tunnel syndrome which is related to the activities that he does at his place of work." Dr. Hammert testified, "I can't tell you exactly what caused the carpal tunnel; often is multifactorial, and can be cause by a variety of things. So seeing him at one point in time, I can't pinpoint exactly what caused it." Neither doctor offered an opinion that claimant's employment was the probable cause of his injury.

Therefore, pursuant to the Boards' continuing jurisdiction under Workers' Compensation Law 123, the Full Board directs that this case be continued to permit the claimant the opportunity to obtain additional medical evidence supporting this claim.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed February 23, 2016, is RESCINDED, without prejudice, and the case continued for further development of the record as directed in the Board Panel decision filed January 10, 2017.