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Case # G1057940
Date of Accident: 07/21/2014
District Office: Buffalo
Employer: West Herr
Carrier: Pennsylvania Manufacturers’
Carrier ID No.: W173504
Carrier Case No.: 0015W53867
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: Jeremey M. Schnurr, Attorney at Law
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 December 16, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier timely raised the Workers' Compensation Law (WCL) § 28 defense, and whether this occupational disease claim is time barred.

The Workers' Compensation Law Judge (WCLJ) found that the claim was time barred pursuant to WCL § 28.

The Board Panel majority reversed the WCLJ decision and found that the claim was not time barred.

The dissenting Board Panel member would affirm the WCLJ decision.

The carrier filed an application for Mandatory Full Board Review on January 13, 2017, asserting that the WCL § 28 defense was timely raised, and the case should be disallowed because it was not timely filed, or in the alternative, that claimant's carpal tunnel syndrome was not causally related.

The claimant filed a rebuttal on February 2, 2017, arguing that the carpal tunnel syndrome occupational disease claim was timely filed.

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 a C-3 (Employee Claim) on September 4, 2015, alleging that he sustained injuries to his wrists and elbow as a result of repetitive computer work and keyboarding during his employment as an accounting manager.

The carrier filed a pre-hearing conference statement (PH-16.2) on September 25, 2015, where it lists various defenses under section 2a, but failed to identify late claim filing as a defense.

At the first hearing held in this case on October 14, 2015, the carrier failed to appear and it was noted that they were experiencing difficulty locating representation due to conflicts. The WCLJ excused the carrier's failure to appear and continued the case for the carrier to appear at the next hearing.

At a hearing held on November 13, 2015, the carrier appeared and raised, among other defenses, the defense of timely claim filing.

Dr. Landi was deposed on January 15, 2016, and testified that he began treating the claimant on June 28, 2005, for a chronic neck injury that caused radicular symptoms. Dr. Landi sent the claimant to an EMG test for the arms, and the test results from the July 9, 2005, EMG showed chronic right sided C6 and C7 radiculopathy with no indication of carpal tunnel syndrome being present. The doctor's diagnosis on the following visit was cervical radiculopathy resulting from an August 8, 1988, motor vehicle accident. A second EMG test was performed on July 21, 2014, which showed chronic right sided C5, C6 and left sided C7 radiculopathy. The EMG also showed moderately severe right median neuropathy at the wrist, moderate left median neuropathy and mild left ulnar neuropathy at the elbow. Based on the July 2014 EMG, Dr. Landi concluded that the claimant has bilateral carpal tunnel syndrome. Dr. Landi testified that there were no other tests for carpal tunnel syndrome performed between these two tests. The claimant told Dr. Landi that his work required repetitive activities with his hands such as using a keyboard, mouse, and a calculator. Dr. Landi testified that it is reasonable to believe that these activities caused the carpal tunnel syndrome.

On cross-examination, Dr. Landi confirmed that the claimant reported complaints of occasional pins and needle pain with numbness in both hands radiating at times to his forearms, as well as right hand weakness and clumsiness during a June 28, 2005, office visit. Dr. Landi admitted these symptoms are consistent with carpal tunnel syndrome. The doctor also admitted that it is typical for a patient to have carpal tunnel syndrome with a negative EMG test. Claimant's last office visit before June 2, 2010, was on October 19, 2005, at which time the claimant reported feeling better, but still had some residual numbness in the left hand. The June 2, 2010, office visit was focused on the claimant's neck pain and headaches. The claimant still had intermittent numbness in both hands suggesting that the hand symptoms from 2005 never went away, but no EMG was ordered in 2010. The claimant was next seen by Dr. Landi on July 15, 2014, at which time the claimant presented with new symptoms of pain in the dorsum of the left hand that radiated into the left forearm and associated tingling that extended into the first three digits of his left hand. The claimant reported that the same symptoms occurred intermittently on the right side too. The claimant reported that these were new symptoms. The claimant's complaints of numbness and tingling in the hands in 2014 were in the same location as the complaints he made in 2005. Dr. Landi admitted that it is possible the claimant had carpal tunnel syndrome in 2005.

On redirect examination, Dr. Landi testified that the more specific complaints in 2014 suggest the new diagnosis for carpal tunnel syndrome developed at that time. Dr. Landi confirmed that carpal tunnel syndrome was not considered until 2014.

On re-cross examination, the doctor confirmed that the complaints recorded in the August 3, 2005, physical therapy initial evaluation were consistent with carpal tunnel syndrome, but that these symptoms overlap with C6-7 radiculopathy, which was shown on the EMG. The doctor testified that these symptoms from 2005 were caused by the neck injury.

At a hearing on February 5, 2016, the claimant testified that he worked for the employer from May 2012 to October 2014, which required him to engage in repetitive keyboarding activities for at least 50% to 60% of the work day. He was only told that he had carpal tunnel syndrome in July 2014, and before that he had a neck and head injury from a 1988 motor vehicle accident. His prior neck injury caused bilateral radiculopathy into both hands. After being diagnosed with carpal tunnel syndrome, the claimant stopped working and his symptoms got better.

On cross-examination, the claimant admitted that he had some wrist issues from repetitive activity in 2008, which he saw Dr. Hatton for on July 6, 2008. The doctor just told him to get a wrist splint to wear at night, and sent him for no other treatment or testing. The claimant testified that he brought a workers' compensation claim against the prior employer, which was disallowed because there was no diagnosis for carpal tunnel syndrome.

The employer witness testified during the February 5, 2016, hearing. The employer witness confirmed that the claimant accurately described his work activities for the employer.

The medical report for Dr. Hatton's July 6, 2008, office visit has not been submitted to the Board file. Additionally, the claimant filed a separate workers' compensation claim against his prior employer (WCB # G1056118), which was disallowed for a lack of medical evidence.

The carrier had the claimant examined by Dr. Michaels on December 7, 2015, and he prepared an addendum dated January 29, 2016. After examining the claimant and reviewing medical records, including both EMG reports, the carrier's doctor reported that the carpal tunnel syndrome was related to the claimant's occupational activities. In the addendum report, the doctor again found the carpal tunnel syndrome to be occupationally related to his work for the employer.

In a reserved decision filed March 11, 2016, the WCLJ disallowed the claim, finding that it was barred by WCL § 28. However, the WCLJ did not make any findings with regard to the date of disablement or date claimant knew or should have known his condition was work related, and offered no rationale for her conclusion.

The claimant filed an application for administrative review. The carrier filed a timely rebuttal.

LEGAL ANALYSIS

Waiver of WCL § 28 Defense

"The right to claim compensation under this chapter shall be barred...unless within two years after the accident...a claim for compensation shall be filed with the chairman..." (WCL § 28). However, the "carrier shall be deemed to have waived the bar of the statute unless the objection to the failure to file the claim within two years is raised on the first hearing on such claim at which all parties in interest are present" (id.).

Carriers are required to file a prehearing conference statement with the Board, with service on all parties, at least ten days before the pre-hearing conference scheduled by the Board in a controverted claim (12 NYCRR 300.38[f][1]). "Failure by the insurance carrier to timely serve upon all other parties and file with the Board the pre-hearing conference statement, or the filing by the insurance carrier of a materially incomplete statement shall result in a waiver of defenses to the claim" (12 NYCRR 300.38[f][4]).

The issue before the Board in this case is whether the carrier waived the WCL § 28 defense pursuant to 12 NYCRR 300.38(f)(4) based on its failure to list the defense in its pre-hearing conference statement, even though it raised the defense at the first hearing at which all parties were present, as required by the statute.

The Notice of Adoption filed in the New York State Register when 12 NYCRR 300.38 was promulgated indicated that the purpose of requiring a carrier to file a pre-hearing conference statement ten days prior to the conference was "to narrow the issues in dispute, provide witness names, and otherwise facilitate the prompt and efficient resolution of disputed issues relating to the basic, initial compensability of the claim" (NYS Register, October 8, 2008, at p. 38). The Notice of Adoption further states in the Summary of Assessment of Public Comment that "[c]ontrary to the comments submitted, WCL § 28 only provides for the waiver of the defense of failing to timely file if it is not raised at the first hearing at which all parties are present" (id. at p. 40).

Interpreting the pre-hearing conference statement rules in 12 NYCRR 300.38 in harmony with the statutory language of WCL § 28, the Full Board finds that a carrier perseveres the defense of timely claim filing by raising the defense at the first hearing where all parties were present, and that the carrier's failure to raise WCL § 28 in its prehearing conference statement does not result in a waiver of that defense. The intent of the prehearing conference rules in 12 NYCRR 300.38, to expedite the resolution of controverted claims by narrowing the issues in dispute early in the pendency claim, is already accomplished by the requirement in WCL § 28 that the defense of timely claim filing be raised at the first hearing at which all parties are present (typically the prehearing conference). Reading the preclusion of defenses provision of 12 NYCRR 300.38(f)(4) to include the defense of claim filing is therefore unnecessary to achieve the goals of the regulation.

Therefore, the Full Board finds in this matter that the carrier did not waive the defense of timely claim filing.

Date of Disablement

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]).

Pursuant to WCL § 28, the right to claim compensation for an occupational disease is not time barred unless it is filed 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]).

In this case, the date of disablement should be set at July 21, 2014, the date that the claimant first had a positive diagnosis for bilateral carpal tunnel syndrome on the EMG test. The claim was filed on September 4, 2015, well within two years of the date of disablement, making the claim timely regardless of when claimant knew or should have known his condition was work related.

The carrier's IME conceded causal relationship between a distinctive feature of claimant's employment (repetitive keyboard use), and no credible medical evidence to the contrary has been presented.

Moreover, in a reserved decision filed December 23, 2016, the WCLJ did establish this claim for bilateral carpal tunnel syndrome and set the date of disablement at July 21, 2014, and the carrier has not requested review of that decision.

Therefore, the preponderance of the evidence in the record supports a finding that this claim was timely filed.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed March 11, 2016, is MODIFIED to find that this claim is not barred by WCL § 28 and to rescind the finding of the C-8.1B in favor of the carrier. No further action is planned by the Board at this time.