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Case # G1366193
Date of Accident: 09/11/2014
District Office: Albany
Employer: Tonoga Inc
Carrier: American Zurich Insurance Co
Carrier ID No.: W036636
Carrier Case No.: 2440232174
Date of Filing of Decision: 06/09/2017
Claimant's Attorney: Martin, Harding & Mazzotti, 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 September 23, 2016.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding insufficient medical evidence to establish the claim for bilateral carpal tunnel syndrome and that claimant had not demonstrated a recognizable link between his condition and a distinctive feature of his employment.

The Board Panel majority reversed and established the claim for the occupational disease of bilateral carpal tunnel syndrome.

The dissenting Board Panel member would affirm the WCLJ.

The carrier filed an application for Mandatory Full Board Review on October 20, 2016, arguing that the Board Panel majority's decision establishing the claim is not supported by rationally based medical evidence.

The claimant filed a rebuttal on November 18, 2016, arguing that the majority opinion should be affirmed by the Full Board because it accurately summarized the evidence, applied the appropriate standard for causal relation, and reached the conclusion that is supported by substantial evidence in the record.

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

FACTS

This is a controverted claim for bilateral carpal tunnel syndrome. In a note dated June 22, 2015, the claimant's physician, Dr. Lyon, diagnosed the claimant with bilateral carpal tunnel syndrome and opined that the condition was contributed to by the very physical work he did as a machinery mechanic.

In a notice of decision filed on January 8, 2016, the WCLJ gave the carrier the opportunity to produce an Independent Medical Examination (IME) report on the issue of causal relationship within 30 days.

The claimant testified at a hearing held on February 1, 2016, that he worked for 17 and a half years as a maintenance mechanic for the employer. He worked up to 6 days a week and for no more than sixty hours per week. He last worked for the employer on September 15, 2014. He used tools every day at work and his job duties included tightening pipes with heavy wrenches, shoveling sand and snow, preventative maintenance, and installing motors. He started having problems with his hands and wrists about two years before he stopped working, but he thought it was arthritis. In January of 2015, following his back surgery, his thumb fell asleep and his hands started falling asleep. He complained to his doctor and had testing done in May of 2015 that indicated severe carpal tunnel in his left and severe in his right. He was diagnosed with carpal tunnel syndrome in May of 2015. Dr. Lyon was the first doctor to discuss that the carpal tunnel syndrome was related to his work, and the discussion occurred in May or June of 2015. He did not have any traumatic injuries to his hands or to his wrists. The claimant testified that at work he had done the same task over and over. He weighed between 278 and 310 for a good part of his life.

At the hearing held on February 1, 2016, memorialized in a notice of decision filed on February 4, 2016, the WCLJ determined that the carrier had waived the opportunity to submit an IME report. However, in an amended decision filed on February 4, 2016, the WCLJ gave the carrier 30 days to produce an IME report on causal relationship.

Dr. Soyer, a board certified orthopedic surgeon, conducted an IME of the claimant on February 17, 2016, on behalf of the carrier. Dr. Soyer's report was filed with the Board on February 29, 2016. Dr. Soyer noted that claimant "explains that he was injured over time because of hard and heavy work in maintenance." The doctor diagnosed the claimant with right wrist carpal tunnel syndrome, status post carpal tunnel release surgery on June 23, 2015, and left wrist carpal tunnel syndrome, status post carpal tunnel release surgery on June 9, 2015. Dr. Soyer opined that the claimant's injuries were causally related to his work-related activities.

Dr. Lyon was deposed on March 24, 2016, and testified that he was the claimant's primary care physician for 15 or 20 years and had treated the claimant for bilateral carpal tunnel syndrome. He did not have the claimant's treatment records with him and his testimony was based on his independent recollection. The claimant had been experiencing a great deal of numbness in his hands. His job duties involved the forceful use of his hands and wrists, repetitive use of his hands combined with force, the firm gripping of objects, moving or using the hand and wrist against resistance, exposure to vibrations, and regular and intermittent pressure on the wrists. The doctor testified that the claimant was obese and other risk factors for carpel tunnel syndrome were obesity and/or a history of arthritis. Dr. Lyon opined that the claimant's carpal tunnel syndrome was related to his work duties. On cross-examination, the doctor could not remember when the claimant became symptomatic for carpal tunnel syndrome, but believed that it was after he had stopped working. The doctor opined that the claimant's carpal tunnel syndrome was related to his use of wrenches and other tools during his employment.

In a reserved decision filed on April 7, 2016, the WCLJ disallowed the claim because he found that the claimant did not meet his burden of producing competent medical evidence to establish the claim and did not demonstrate a recognizable link between his carpal tunnel syndrome and a distinctive feature of his employment. The WCLJ found the claimant's testimony to be vague concerning his occupational duties and the time spent performing each work task. The WCLJ found that Dr. Lyon did not obtain a complete and accurate occupational history and/or a complete medical history. The WCLJ found that the doctor's opinion on causal relationship was not credible because it was inconsistent with the Medical Treatment Guidelines (MTG) for carpal tunnel syndrome. The WCLJ noted that he did not consider the accuracy or competency of the IME report because it had been precluded.

In his application for administrative review, the claimant argued that the WCLJ decision should be rescinded because the WCLJ inaccurately summarized the record, replaced the current standard for causal relationship with the standard in the MTG for carpal tunnel syndrome, and reached a conclusion entirely at odds with the substantial evidence in the record.

In rebuttal, the carrier argued that the reserved decision should be affirmed because it was fully supported by the record.

LEGAL ANALYSIS

In the carrier's application for Mandatory Full Board Review, it argues that the Board Panel majority's decision establishing the claim is not supported by rationally based medical evidence and is contrary to applicable law, including the relevant provisions of the MTG.

The claimant argues in rebuttal that the majority opinion should be affirmed by the Full Board because it accurately summarized the evidence, applied the appropriate standard for causal relation, and reached the conclusion that is supported by substantial evidence in the record.

A claim for occupational disease "is restricted to medical conditions resulting from the ordinary and generally recognized risks incident to a particular occupation" (Matter of Mack v County of Rockland, 71 NY2d 1008 [1988]). An occupational disease "derives from the very nature of the employment and not from an environmental condition specific to the place of work" (Matter of Bates v Marine Midland Bank, 256 AD2d 948 [1998] [internal quotation marks and citation omitted]. Evidence that a repetitive action is a distinct feature of a claimant's employment together with medical evidence of the necessary causal link will support a claim for an occupational disease (see Matter of Aldrich v St. Joseph's Hosp., 305 AD2d 908 [2003]).

When the "medical opinion of claimant's treating physician [is] neither speculative nor a general expression of possibility and it 'signif[ies] a probability as to the underlying cause of the claimant's injury which is supported by a rational basis' (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]," and when there is no conflicting medical evidence, the Board may not reject the treating physician's uncontroverted medical opinion on causation (Matter of Maye v Alton Mfg., Inc., 90 AD3d 1177 [2011] [additional internal citations omitted]). However, even in the absence of conflicting medical evidence, the Board may reject the treating physician's opinion based on a determination that such opinion is not credible (Matter of Lichten v New York City Tr. Auth., 132 AD3d 1219 [2015]).

"Although the Board's authority in resolving medical questions includes the power to selectively accept or reject portions of a medical expert's opinion, it may not totally reject uncontroverted medical testimony on the issue of causation and thereby fashion a medical opinion of its own (see Matter of Sullivan v Sysco Corp., 199 AD2d 849 [1993]; Matter of Doersam v Oswego County Dept. of Social Servs., 171 AD2d 934 [1991], affd 80 NY2d 775 [1992]; Matter of Smith v Bell Aerospace, 125 AD2d 140 [1987])" (Matter of Lincoln v Consolidated Edison Co. of N.Y., Inc., 46 AD3d 1176 [2007]).

Here, it is undisputed that the claimant has bilateral carpal tunnel syndrome. The claimant credibly testified that he worked as a maintenance mechanic for 17 and a half years, that he worked up to 6 days per week and nor more than sixty hours per week. The claimant described his job duties as including using tools every day at work, tightening pipes with heavy wrenches, shoveling sand and snow, preventative maintenance, and installing motors. Dr. Lyon indicated that the claimant's job duties included the forceful use of his hands and wrists, repetitive use of his hands combined with force, the firm gripping of objects, the moving or using the hand and wrist against resistance, exposure to vibrations, and regular and intermittent pressure on the wrists. Dr. Lyon credibly opined that the claimant's carpal tunnel syndrome was related to his work duties and his use of wrenches and other tools during his employment. The carrier did not produce conflicting medial evidence.

The WCLJ incorrectly found in the reserved decision that Dr. Lyon's opinion on causal relationship was not credible because it was inconsistent with the MTG for carpal tunnel syndrome. The MTGs provide guidance for the treatment of carpal tunnel syndrome, but 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]).

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the repetitive requirements of the claimant's employment as a maintenance mechanic caused the development of bilateral carpal tunnel syndrome. This claim is established for occupational bilateral carpal tunnel syndrome. The date of disablement is set at June 22, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on April 7, 2016, is REVERSED. This claim is established for occupational bilateral carpal tunnel syndrome. The date of disablement is set at June 22, 2015. The case is continued.