Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # G0994317
Date of Accident: 12/17/2013
District Office: Rochester
Employer: Yancey’s Fancy Inc
Carrier: Hartford Insurance Company
Carrier ID No.: W106751
Carrier Case No.: YSQ79794C
Date of Filing of Decision: 07/20/2017
Claimant's Attorney: Lewis & Lewis PC
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 October 13, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant properly served all interested parties with his application for Mandatory Full Board Review; and,
  2. whether the claim should be amended to include the right shoulder.

The Workers' Compensation Law Judge (WCLJ) found that the claimant did not have a causally related right shoulder injury.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would amend the claim to include the claimant's right shoulder condition.

The claimant filed an application for Mandatory Full Board Review on November 10, 2016, arguing that the medical evidence supports amending the claim to include the right shoulder.

The carrier filed a rebuttal on December 9, 2016, that the Full Board should deny review because the claimant did not serve the application for Mandatory Full Board Review on the employer, or in the alternative, affirm the Board Panel decision because the claimant failed to credibly prove causal relationship for the right shoulder.

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

FACTS

According to claimant's C-3 (Employee Claim) filed January 10, 2014, his right elbow began to hurt on November 18, 2013, while he was "putting wax on the cheese," and he first sought treatment on December 17, 2013. This case was established for right ulnar neuropathy and carpal tunnel syndrome with a date of accident of December 17, 2013, by a decision filed April 28, 2014.

By an EC-4NARR form (Doctor's Narrative Report) filed on August 12, 2014, Dr. Landfried, the claimant's treating orthopedic surgeon, indicated that the claimant presented with right shoulder pain, right elbow pain, and right wrist pain on July 29, 2014. Dr. Landfried's examination showed evidence of impingement of claimant's right shoulder. The doctor diagnosed the claimant with right shoulder pain and injected the claimant's right shoulder with cortisone.

On November 3, 2014, Dr. Landfried performed ulnar nerve transposition with medial epicondylar release, lateral epicendylectomy, and carpal tunnel release, on claimant's right upper extremity.

Dr. Hausmann, the carrier's orthopedic surgeon consultant, conducted an independent medical examination (IME) of the claimant on July 15, 2015. The doctor indicated that the claimant had persistent pain complaints, a pulling sensation in the arm, and pain in the right shoulder which is of a more recent onset. The doctor indicated that his examination of the claimant's right shoulder resulted in pain complaints at extremes of motion. Dr. Hausmann wrote:

With regard to the right shoulder, I don't see anything in the record concerning an injury to the right shoulder in this claim. This appears to be a much more recent onset. When I saw him in April [2014], there was no mention of a shoulder complaint. Therefore, I do not find any evidence in the file, based on my last report, of a right shoulder condition. Since he has not been working, I do not find any basis for consequential shoulder problems.

At a hearing on November 9, 2015, the claimant testified that he worked for the employer for three months. His job was dipping wheels of cheese weighing up to ten pound, 5 ounces, in wax. He used his right hand to dip the cheese into the wax. He dipped 800 to 1,200 wheels per shift, and dipped each wheel twice. His shifts were between 10 and 12 hours per day, six days per week. He started having symptoms in his right arm and shoulder two-and-a-half weeks after he started wax dipping. He reported his right shoulder pain to Dr. Landfried shortly before his surgery on November 3, 2014, and again three months after his surgery when the pain didn't go away.

On cross-examination, claimant testified that Dr. Landfried believed his right shoulder symptoms were consequential to his right elbow injury. He began noticing pain in his right shoulder approximately a month and a half after he was injured on November 18, 2013. He stopped working for the employer on December 13, 2013, and has not worked anywhere since then.

Dr. Landfried was deposed on January 12, 2016, and testified that the claimant's first visit was on January 24, 2014, and he complained of pain on both sides of his right elbow, numbness and tingling down his right arm, and some radiation to his middle finger. The claimant provided a history of working in the waxing room of a cheese factory where he did repetitive lifting of up to 1,200 5 to 10 pound blocks of cheese a night. His July 29, 2014, report indicated that the claimant complained of right shoulder pain, but did not provide a history of how the symptoms developed. Examination of the claimant's right shoulder revealed no swelling, some tenderness, some impingement signs, and a little bit of cartilage or labral pathology. He treated claimant's shoulder with an injection of Marcaine. X-rays taken of claimant's right shoulder on July 29, 2014, indicated Type II acromia and a bit of arthritis in the AC joint. At his August 26, 2014, visit, the claimant still had shoulder pain complaints and reported that the previous injection did not help very much. Claimant had the same complaints at the October 2, 2014, examination and was given another injection in his right shoulder; however, he was still complaining of right shoulder pain at his December 16, 2015, examination. Dr. Landfried opined that the claimant had shoulder pain impingement syndrome, possible rotator cuff tear or labral tear and the diagnosis was related to the claimant's work. He was waiting for authorization for a right shoulder MRI to determine if the claimant's right shoulder pain was the result of nerve and residual pain from his elbow or mechanical pain in the shoulder. Claimant indicated that pain radiates from his right elbow into his shoulder. Dr. Landfried conceded "[t]hat there may not be any pathology in the shoulder" (transcript, 1/12/16 deposition, Dr. Landfried, p. 14). He then testified that,

either way it's as a result of the - probably the work and probably the whole problem whether it's compensatory, you know, from having to do things different and using his arm different or whether it's radicular in causalgia. I think the shoulder pain is related, I just don't know if it's a primary cause or secondary result.

(Id. at 14-15).

In a reserved decision filed on March 22, 2016, the WCLJ denied the claimant's request to amend the claim to include the right shoulder based on the opinion of Dr. Hausmann who found that the claimant's right shoulder complaints did not develop for several months after the claimant stopped working and were not related to his work in the fall of 2013. The WCLJ also awarded Dr. Landfried $400.00 for his deposition testimony.

Claimant requested administrative review of the WCLJ decision.

LEGAL ANALYSIS

Proper Service Pursuant to 12 NYCRR 300.13(b)(2)(iv)

Pursuant to 12 NYCRR 300.13(b)(2)(iv), which became effective on October 3, 2016, an application to the Board to review a decision of a WCLJ must include proof of service upon all necessary parties of interest in the format required by the Chair. The failure to comply with this requirement renders an application "defective."

Where an application for review is submitted without proper proof of service upon a necessary party of interest, "other than a party who is not adverse to the appellant," the Board may deny review without consideration of the merits so long as the issue is properly raised in a rebuttal application (12 NYCRR 300.13[b][4][iv]; see also 12 NYCRR 300.13[b][2][iv]). 12 NYCRR 300.13(a)(4) defines 'necessary parties of interest' as: "...claimants, self-insured employers, private insurance carriers, the state insurance fund, special funds, no-fault carriers per section 142 of the Workers' Compensation Law, or any surety, including but not limited to the uninsured employer's fund, and the liquidation bureau." An insured employer is not a necessary party of interest under 12 NYCRR 300.13(a)(4).

Therefore, the carrier's argument that the employer needed to be served in this matter is incorrect and the Full Board will review the merits of claimant's application for Mandatory Full Board Review.

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 deposition testimony of Dr. Landfried, taken in its entirety, supports finding that the claimant's work caused his right shoulder condition. While Dr. Landfried equivocated under cross-examination, this only evidences that Dr. Landfried could not express his medical opinion on causation with absolute certainty. Dr. Landfried's equivocation, moreover, appears to concern whether the claimant's right shoulder condition was an injury directly caused by the claimant's work or a consequential injury caused by the claimant's right elbow condition. In either event, he relates the shoulder to the work, and the claim for the shoulder is timely.

The opinion of Dr. Landfried, furthermore, is more credible than Dr. Hausmann's opinion as Dr. Hausmann's opinion does not consider Dr. Landfried's treatment of the claimant's right shoulder. Although Dr. Hausmann indicated that he had reviewed numerous office notes from Genesee Orthopaedics & Sports Medicine dated from June 3, 2014, to May 28, 2015, Dr. Hausmann did not acknowledge that Dr. Landfried treated the claimant's right shoulder condition on July 29, 2014, and on October 3, 2014, with cortisone injections.

Therefore, the Full Board finds that the preponderance of the evidence supports a finding that claimant's right shoulder injury is causally related to his compensable accidental injury.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on March 22, 2016, is MODIFIED to amend this claim to include a causally related right shoulder injury. No further action is planned by the Board at this time.