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Case # G0934216
Date of Accident: 03/24/2015
District Office: Rochester
Employer: The Lifetime HealthCare Company
Carrier: Lifetime HealthCare, Inc.
Carrier ID No.: W417380
Carrier Case No.: LH 14 000296
Date of Filing of Decision: 07/20/2017
Claimant's Attorney: Segar & Sciortino
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on June 20, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 30, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant's occupational injuries were caused by both her employment as a home health aide for Lifetime Healthcare (Lifetime) and her employment as a paraprofessional with the school district.

The Workers' Compensation Law Judge (WCLJ) established this claim for occupational bilateral carpal tunnel syndrome and bilateral epicondylitis, and found that the injuries resulted solely from claimant's employment with Lifetime.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that claimant's injuries were the result of her work activities with both employers.

Lifetime filed an application for Mandatory Full Board Review on September 2, 2016, arguing that "dual employment applies" and that liability should be apportioned 76% to the school district and 24% to Lifetime, or "[a]t most," liability should be apportioned equally between the two employers.

The claimant filed a rebuttal on September 7, 2016, taking no position on the issue of apportionment of liability between her two employers.

The school district filed a rebuttal on September 28, 2016, arguing that there is no evidence in the record that claimant's employment with the school district contributed to her wrist and elbow conditions.

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

FACTS

Lifetime controverted this claim for multiple injuries to claimant's upper extremities.

In a December 3, 2014, report, claimant's treating physician, Dr. Jones, indicated that claimant was being seen for bilateral epicondylitis, bilateral basal joint arthritis, and carpal tunnel syndrome. Dr. Jones noted that claimant was "still working in her usual job as a patient care provider," and recommended that she undergo an EMG/nerve conduction study.

In a February 23, 2015, narrative report, Dr. Jones indicated that claimant was "seen in followup of her carpal tunnel syndrome," that this was "a work-related injury," and that claimant was "a CNA and does a lot of lifting and pulling." Dr. Jones noted in his narrative report that claimant's employer was Lifetime. However, the accompanying EC-4NARR form lists the Board of Education, rather than Lifetime, as her employer. Electrodiagnostic studies confirmed that claimant had bilateral carpal tunnel syndrome, more severe on the left than the right. Dr. Jones opined that claimant's carpal tunnel syndrome was "related to her employment on the date of injury given, 11/22/2014."

In reports based on examinations on March 24, 2015, and May 26, 2015, Dr. Jones listed the Board of Education as claimant's employer.

Claimant appeared without counsel at a hearing on June 8, 2015. The WCLJ noted that Dr. Jones' reports listed the Board of Education as her employer and claimant clarified that her carpal tunnel was caused by her job as a home health aide. She stated that Dr. Jones' office "probably got confused from both jobs. I worked two jobs and they mixed it up. He knows I work two jobs, seven day all the time, so I'm going to have to correct him" (transcript, 6/8/15 hearing, p. 4). The WCLJ directed that the school district be placed on notice. Claimant stated that she had worked for both Lifetime and the school district for many years.

Subsequent to the June 8, 2015, hearing, claimant retained counsel.

In an August 31, 2015, narrative report, Dr. Jones wrote:

The carpal tunnel is work related. She has had 2 jobs essentially similar in their duties.

She has [sic] working roughly similar amounts for them both, one is the city school district and the other as a home care agency. After discussion with her and discussion of symptoms we determined, and I agree that roughly 50/50 portion would be appropriate based on the types of jobs done. Certainly I would defer to those with a greater amount of knowledge based on records if they exist.

On September 23, 2015, claimant was examined by Dr. Lefebvre on behalf of Lifetime. In his IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Lefebvre stated that claimant advised that she had worked for Lifetime as a home health aide since 2000. She worked for Lifetime approximately 25 hours per week. She had worked for the school district as a special education paraprofessional since 2001. She worked for the school district 30 hours per week during the school year and would also work there during the summers if openings were available. Dr. Lefebvre wrote:

All of the claimant's condition in the upper extremities is complicated and multifactorial. She associates the onset, to her best recall, to 11/22/2014, when she was assigned the care of a 200-plus-pound male who was totally nonmobile where she had to assist this individual by herself in lifting him and moving him as needed. In the process on that day, she started developing pain in both wrists, hands, forearms, and elbows, and she noticed at the end of her shift, bruising on the volar aspect of her forearms. She subsequently started developing numbness and tingling in her fingertips and this would have been up appropriately [sic] one month or so later, just before the seasonal holidays.

Prior to that time she has no recollection of having any significant difficulties with her arms or hands.

Dr. Lefebvre diagnosed claimant with occupational bilateral carpal tunnel syndrome and bilateral epicondylitis. Based on claimant's history of working similar hours and performing similar work at her two jobs, Dr. Lefebvre concurred with Dr. Jones "that a 50% apportionment be given between her employment" with Lifetime and with the school district.

Claimant testified at a hearing on November 4, 2015, that she had worked for the school district as a paraprofessional for 14 years. Her job at the school district required her to lift, change and feed children with multiple disabilities. She worked for the school district 30 hours per week. She has also worked as a home health aide caring for elderly patients for over 20 years for different employers. She had worked for Lifetime for over five years. Her job at Lifetime required her to take care of the elderly in their homes. Her job at Lifetime involved lifting, changing and feeding patients. Her hours at Lifetime varied from 10 to 30 hours per week.

Claimant testified that she first began experiencing symptoms in her hands and elbows several years earlier, while lifting a child. She first treated for those symptoms in November 2014, when the pain had become excruciating. She has not lost any time from work. Her symptoms were the same at both jobs. She reported an injury to her forearms which occurred in November 2014, lifting a patient while working for Lifetime. Her duties for both employers are very similar.

Claimant testified on cross-examination that she treated with her primary care physician in July of 2009 for hand pain, and was given splints. When asked whether she knew at that time whether her hand problems were due to her work, claimant responded, "Probably" (transcript, 11/4/15 hearing, p. 16). She began treating with Dr. Jones' nurse in January 2013 for hand and elbow symptoms. Claimant denied telling Dr. Jones that she did not recall experiencing significant hand symptoms prior to November 2014.

Dr. Lefebvre was deposed on November 10, 2015, and testified that claimant had advised him that her wrist and elbow symptoms began on November 22, 2014, while lifting a heavy patient. She did not recall any prior symptoms or treatment with regard to her upper extremities. When asked whether it would change his opinion on causation if claimant's symptoms began in 2009, the doctor responded, "It might. I would have to review those records" (deposition, Dr. Lefebvre, 11/10/15, p. 6). When asked whether claimant's two jobs were similar, Dr. Lefebvre responded,

In dealing with - yes, in my experience the TA's [paraprofessionals] working with challenged individuals, there are physical demands such as physical restraint and take downs and sometimes the - depending on the severity of the disability these people have to be physically assisted in and out of their wheelchairs. They can sometimes require being lifted and transported to a table and so forth. So there are physical demands that are similar to those of a Home Health Aide.

(Id. at 8).

According to Dr. Lefebvre, "both employments currently simultaneously caused the events and the symptoms that she reported," and he would apportion causation equally between both employments (id. at 8-9).

On cross-examination, Dr. Lefebvre was told that claimant had testified that she worked approximately 10 to 15 hours per week for Lifetime (she had in fact testified that she worked there between 10 and 30 per week), and 30 hours per week for the school district, and was asked whether this would change the doctor's opinion on apportionment of causation. Dr. Lefebvre responded that it would, and that he would apportion causation proportionally between claimant's two jobs based on the hours spent at each job.

Dr. Jones was deposed on November 12, 2015, and testified that he began treating claimant on January 7, 2013, for bilateral hand pain. At the time of her initial visit, Dr. Jones did not have a firm diagnosis and did not draw any conclusions as to what was causing her symptoms. Nerve conduction studies ordered by another doctor in February 2013 showed that claimant had mild bilateral carpal tunnel syndrome. Dr. Jones believed that claimant's injuries resulted from the manner in which she assisted patients, some of whom were significantly larger than the claimant, which placed a lot of stress on her elbows and wrists. Claimant never advised him that she sustained a discrete accident or injury on November 22, 2014.

As to his opinion on apportioning causation equally between claimant's two jobs, Dr. Jones testified that claimant proposed "the 50/50 apportionment between these two jobs" and the doctor "basically said I have no reason to refute a 50/50 apportionment, if that had been made, because I don't have enough information to say one way or the other" (deposition, Dr. Jones, 11/12/15, p. 27). Dr. Jones was well aware of the tasks claimant was required to perform as a home health aide, but had no knowledge of the tasks claimant performed in her job with the school district. When asked to assume that claimant's employment with the school district involved similar tasks to those she performed as a home health aide, Dr. Jones testified that it was possible that her work for the school district caused her symptoms.

In a reserved decision filed January 29, 2016, the WCLJ established this claim for occupational bilateral carpal tunnel syndrome and bilateral epicondylitis, set the date of disablement as March 24, 2015, and found that the injuries resulted solely from claimant's employment with Lifetime. The WCLJ set claimant's average weekly wage with Lifetime at $184.60, without prejudice, and her concurrent average weekly wage with the school district at $150.00, also without prejudice. The WCLJ wrote:

Here, I find the consistent medical evidence establishes a causal relationship between the claimant's work and her injuries, as corroborated by the claimant's treating physician and the carrier's independent medical consultant, both of whom were aware of the claimant's position as a home health aide, but had an incomplete history of the claimant's work as a para-professional working with children. Moreover, I find the claimant's testimony to be forthright regarding her employment and her work ethic, and that her testimony and the medical evidence demonstrate a link between her condition and the distinctive features of her work caring for elderly patients with Lifetime. The carrier's position that children with whom the claimant deals with at her paraprofessional position can be large is not controlling, as there is no evidence in the record that the claimant reported or testified to any unique employment factors with the children that would draw one to conclude that her injuries were specific to her place of work with the children. Despite her lack of consistent recollection of dates or what doctors may have said, the claimant is not a doctor and it is not unreasonable for her to be confused over medical history she provided or carriers' repetitive questioning.

Lifetime requested administrative review of the WCLJ decision solely on the issue of whether claimant's conditions were caused by both employments.

In her rebuttal, claimant took no position on the issue of apportionment between her two employers.

The school district argues in its rebuttal that there is no evidence in the record that claimant's employment with the school district contributed to her wrist and elbow conditions.

LEGAL ANALYSIS

Although Dr. Jones opined that claimant's injuries were caused by both of her employments, his testimony that claimant had proposed "the 50/50 apportionment between these two jobs" and that he had no knowledge of the tasks claimant performed in her job with the school district, undermines the credibility of that opinion.

Dr. Lefebvre, however, was clearly aware of the requirements of claimant's job duties with the school district, testifying that she would be required to lift and transport patients, duties similar to those she performed as home health aide for Lifetime. Dr. Lefebvre's testimony concerning the duties of claimant's job with the school district is confirmed by claimant's testimony that the requirements of both jobs were similar, as both required her to care for and lift patients. The WCLJ's finding, adopted by the Board Panel majority, that Dr. Lefebvre "had an incomplete history of the claimant's work as a para-professional working with children," is therefore not supported by the record. The preponderance of the evidence supports a finding that claimant's employments with Lifetime and the school district both contributed to cause her conditions.

Workers' Compensation Law (WCL) § 44 provides with respect to occupational diseases other than dust diseases, that "[t]he total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted." WCL 44 goes on to provide for apportionment to "prior employer[s]" in whose employment the occupational disease was contracted, in proportion to how long claimant worked for each employer. However, the statute does not expressly provide for apportionment between employers for whom claimant worked concurrently, and which both contributed to the occupational disease. In a prior matter involving similar facts, the Board Panel adopted the rule used in cases of "dual employment:"

In Hunt v Regent Development Corporation, 3 NY2d 133, 164 NYS2d 694 (1957), the Court of Appeals set forth the rule for apportioning liability between two employments which jointly caused a single injury. The court in Hunt held that in that situation, "It is both fair and logical, therefore, that both employers be liable for compensation to the claimant in proportion to the remuneration paid by each, and such, we note, has been the rule..." See Matter of Valley Health Services, 2005 NY Wrk Comp 60412020.

(Matter of Angerlo Piazza Construction, 2008 NY Wrk Comp 60111114).

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant's employments with Lifetime and the school district both contributed to cause her occupational bilateral carpal tunnel syndrome and bilateral epicondylitis, and that both employers are liable for this claim in proportion to the average weekly wage established for each employer.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed January 29, 2016, is MODIFIED to find that claimant's employments with Lifetime and the school district both contributed to cause her occupational bilateral carpal tunnel syndrome and bilateral epicondylitis, and that both employers are liable for this claim (both lost wage benefits and medical treatment) in proportion to the average weekly wage established for each employer. In all other respects the decision remains in effect. The case is continued.