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Case # G0747062
Date of Accident: 05/01/2014
District Office: Albany
Employer: Mavis Discount Tires
Carrier: LM Insurance Corp
Carrier ID No.: W122824
Carrier Case No.: 205A65621
Date of Filing of Decision: 06/20/2017
Claimant's Attorney: Drew, Davidoff & Edwards, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on May 16, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 18, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether this claim should be established for occupational bilateral carpal tunnel syndrome and right third trigger finger.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority reversed the WCLJ decision and established the claim for occupational bilateral carpal tunnel syndrome and right third trigger finger.

The dissenting Board Panel member would have affirmed the WCLJ decision disallowing the claim.

The carrier filed an application for Mandatory Full Board Review on June 15, 2016, requesting that the Full Board affirm the WCLJ decision disallowing the claim.

The claimant filed a rebuttal on July 14, 2016, arguing that the Board Panel majority correctly established this claim.

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

FACTS

Claimant filed a C-3 (Employee Claim) on September 25, 2014, alleging that he developed bilateral carpal tunnel syndrome as the result of repetitive, strenuous use of hands during his employment as an automobile mechanic, and first sought medical treatment on April 9, 2014, with Dr. Scheinfeld. Claimant stated that "[t]his is a claim for occupational injury. Symptoms worsened on or about 5/1/14." The carrier controverted the claim.

The record contains an August 14, 2014, report by Dr. Scheinfeld, in which he diagnosed claimant with bilateral carpal tunnel syndrome and trigger finger of the right third finger.

In a note dated August 19, 2014, claimant's treating physician, Dr. Sodha, wrote,

[Claimant] is currently under my medical care for bilateral carpal tunnel syndrome and right third trigger finger. Based on his history of being a mechanic for 13 years and using his hands for repetitively [sic] during this time, lifting, squeezing, gripping and using tools, these conditions are causally related to his work activities with a reasonable degree of certainty.

Claimant was examined by the carrier's consultant, Dr. Bhanusali, on May 28, 2015. In his IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Bhanusali noted a history of claimant working as a mechanic "for about 13 years prior to the injury of May 1, 2014." His job "entails inspecting the cars, the brakes, the tires, examining the suspension. It is heavy work." Claimant reported that he has numbness in both hands and that his right middle finger had started "popping out." Dr. Bhanusali noted that EMG/nerve conduction studies done by Dr. Scheinfeld "revealed carpal tunnel syndrome of both the wrists."

Dr. Bhanusali indicated in his report that claimant had not worked since October 3, 2012, due to a work-related back injury, and denied any new injuries to his hands or fingers. Dr. Bhanusali diagnosed bilateral carpal tunnel syndrome and trigger finger of the right middle finger. With respect to causal relationship, Dr. Bhanusali wrote,

If the history is accurate, there is a causal relation between the diagnosis and the date of injury. However, it is a cumulative disorder because of the overuse of the upper extremities so it comes gradually. In my opinion the conditions are causally related because of the type of work he does.

Dr. Scheinfeld was deposed on June 4, 2015, and testified that he started treating claimant in July 2013 for back pain, and has examined him monthly since then. He saw claimant for wrist problems on March 24, 2014, and billed his private insurance. EMG showed that claimant had bilateral carpal tunnel syndrome. Dr. Scheinfeld did not take a history regarding the possible causes of claimant's carpal tunnel syndrome, and testified that,

He had a trigger finger and positive Phalen's test. Like it was just grossly positive. So, being a diabetic, I said, look, maybe you have carpal tunnel. And then the next thing we put it on this private insurance and did an EMG, and that's as far as the depth of the story.

(Deposition, Dr. Scheinfeld, 6/4/15, p. 6).

When Dr. Scheinfeld initially examined claimant on July 18, 2013, with respect to his back, claimant denied any other complaints and made no mention of problems with his wrist. Dr. Scheinfeld stated that carpal tunnel syndrome is more prevalent in people with diabetes.

Claimant testified at a hearing on June 22, 2015, that he last worked on October 3, 2012. He stopped working due to a back injury. He did not recall when he first saw a doctor for the problems with his hands. It was some time after he stopped working. His hands did not bother him while he was working for the employer. His hands were bothering him for over a year before he first sought treatment. He worked for the employer as a mechanic for 13 years.

At the June 22, 2015, hearing, claimant's attorney argued that the carrier should not be permitted to take the testimony of Dr. Sodha because there was no discrepancy between the opinions of Dr. Sodha and Dr. Bhanusali on the issue of causal relationship. The carrier argued that it should be permitted to question Dr. Sodha about how he reached the conclusion that claimant's condition was causally related even though he began treating two years after he stopped working. The WCLJ found that the carrier should be allowed the opportunity to cross-examine Dr. Sodha and granted an extension of time to depose the doctors. That finding is reflected in a decision filed June 26, 2015. Neither party requested review of that decision.

Dr. Sodha was deposed on June 23, 2015, and testified that he first treated claimant in August 2014, at which time he diagnosed bilateral carpal tunnel syndrome and right third trigger finger. He took a history of claimant "using his hands for repetitive activities over a period of time during his employment as a mechanic" (deposition, Dr. Sodha, 6/23/15, p. 6). He was aware that claimant was out of work due to a herniated disc at the time he examined him. Claimant told him that "his numbness was certainly worse when he was working, when he was - he was not working at the time I saw him. His hands were still numb, but not as intense when he was working" (p. 7). Dr. Sodha believed that repetitive work as a mechanic caused claimant's carpal tunnel syndrome.

On cross-examination, Dr. Sodha stated that he was aware that claimant had diabetes. Claimant advised him that his wrist "symptoms were far worse" while he was still working. It would be atypical for someone to develop symptoms of carpal tunnel a year or two after he stopped working.

In a reserved decision filed July 31, 2015, the WCLJ disallowed the claim. The WCLJ noted the "significant discrepancy" between the testimony of the claimant, who stated that he did not experience hand symptoms while working for the employer, and that of Dr. Sodha, who testified that claimant reported that his symptoms were much worse while he was still working. The WCLJ concluded that this discrepancy, which undermined the opinion of Dr. Sodha on causal relationship, as well as claimant's diabetes, supports a finding that claimant's conditions are not causally related.

Claimant requested administrative review, arguing that the claim should be established because the medical opinions were unanimous that claimant's conditions are causally related to his employment, and that there was "no 'significant discrepancy' regarding the relevant testimony of the claimant and his treating physician." Claimant further contends that because there was no conflict between the opinions of Dr. Sodha and Dr. Bhanusali, it was an error for the WCLJ to allow the carrier the opportunity to cross-examine Dr. Sodha.

In its rebuttal, the carrier argued that the inaccurate history provided by claimant undermines the medical opinions of causal relationship and supports the disallowance of this claim.

LEGAL ANALYSIS

"It is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

A medical opinion is not supported by a 'rational basis' when a basic assumption underlying that opinion is not supported by the record (see Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067 [2008]).

Here, there was a clear discrepancy between the testimony of the claimant, who stated that he did not experience hand symptoms while working for the employer, and that of Dr. Sodha, who testified that claimant reported that his symptoms were much worse while he was still working. Dr. Sodha testified that it would be atypical for someone to develop symptoms of carpal tunnel a year or two after he stopped working. However, Dr. Sodha was never asked whether it would change his opinion on causal relationship if claimant had not begun experiencing symptoms until after he left his employment. Dr. Sodha never retracted his opinion on causal relationship and never indicated that his opinion on causal relationship was based on his belief that claimant began experiencing symptoms while still working.

Nor did Dr. Bhanusali indicate in his report that his opinion on causal relationship was premised on a history of claimant being symptomatic while still working. Dr. Bhanusali was clearly aware that claimant had stopped working in October 2012 due his back injury and did not begin receiving treatment for his wrists until 2014. Finally, Dr. Scheinfeld did not offer a clear opinion on causal relationship and his testimony is insufficient to support a finding that claimant's conditions are solely causally related to his diabetes, and not his work activities.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports establishing the claim for occupational bilateral carpal tunnel syndrome and right third trigger finger.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 31, 2015, is REVERSED. The claim is established for occupational bilateral carpal tunnel syndrome and right third trigger finger and the date of disablement is set at August 19, 2014. The case is continued.