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Case # G1294904
Date of Accident:
District Office: NYC
Employer: NYC TA
Carrier: NYC Transit Authority
Carrier ID No.: W848006
Carrier Case No.: TA201500852
Date of Filing of Decision: 12/27/2017
Claimant's Attorney: Oliver C Minott Law Offices
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed December 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant sustained injuries to his right upper extremity as the result of years of repetitive work.

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

The Board Panel majority established the claim for occupational right de Quervain's syndrome, right carpal tunnel syndrome, and right cubital tunnel syndrome, with a March 30, 2015, date of disablement.

The dissenting Board Panel member would affirm the WCLJ's disallowance of the claim because the medical opinions rendered in this case are speculative and do not support establishment of the case.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on January 30, 2017, requesting that the Full Board adopt the dissenting Board Panel member's opinion. The SIE notes that claimant took a regular retirement and never reported his hand symptoms to his employer prior to his retirement. The SIE argues that the opinion of claimant's treating physician, Dr. Hearns, should not be credited because he was unaware that claimant was diabetic.

The claimant did not file a timely rebuttal.

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

FACTS

Claimant first sought treatment on March 30, 2015, with Dr. Roberts and physician's assistant Cristina Comparetto. In an EC-4 (Doctor's Initial Report) based on the March 30, 2015, examination, Dr. Roberts indicated that claimant had worked for the New York City Transit Authority for 23 years and was complaining of pain in his right wrist. In a narrative based on the same examination, PA Comparetto stated that the claimant gave a history of being a station agent for 23 years and that 2 years prior, while working, he started getting pain and aching in his right hand. The claimant indicated that the pain had remained stable over the past 2 years and had not gotten worse. The claimant indicated that his work included counting money and programing MetroCards on the computer.

The claimant had an MRI of his right hand on May 12, 2015, performed by Dr. Glickman. In his report, Dr. Glickman indicated that the MRI revealed multiple subcutaneous venous varicosities in the fat planes along the palm of the hand extending into the digits, which "can be seen in the setting of chronic exposure to vibration or a major blow[,]" but was otherwise unremarkable.

Claimant filed a C-3 (Employee Claim) on June 4, 2015, alleging that he injured his right hand as the result of overuse at work. He indicated that he worked as a station agent and his job required him to sell fares, code MetroCards and assist passengers. The SIE controverted the claim.

Claimant first treated with Dr. Gupta, an orthopedic surgeon, on June 4, 2015. In a narrative report based on that examination, Dr. Gupta noted that the claimant complained of pain in the dorsal radial aspect of his right thumb at the base. The pain occurred with activities while he was working. There was no specific accident, and as a result of the constant work that he was doing it had gotten progressively worse over time. The doctor diagnosed the claimant with osteoarthrosis of his CMC joint, which was likely the result of years of repetitive work using his hand.

On September 3, 2015, claimant underwent an electrodiagnostic study of his right upper extremity. In the resulting report, Dr. Avella indicated that the study revealed evidence of mild to moderate bilateral carpal tunnel syndrome and evidence of moderate to severe ulnar nerve motor entrapment neuropathy across the elbow.

Dr. Hearns first examined claimant on October 14, 2015. In his initial report, Dr. Hearns stated that claimant's job tasks as a station agent "included collecting tokens the old fashion way with emptying and carrying buckets of tokens in both hands, counting money, using hands repetitively to produce MetroCards 7 hours/day, 5 days per/week for 23 years." Dr. Hearns diagnosed claimant with bilateral carpal tunnel syndrome, right cubital tunnel syndrome, bilateral de Quervain's syndrome and internal derangement of both wrists and hands. The doctor found that there was a causal relationship between these conditions and claimant's job activities.

Dr. Hearns examined claimant again on December 21, 2015. In his report, Dr. Hearns noted that the claimant, who is right-hand dominant, was not working due to retirement, had complaints of right wrist, right hand, and right elbow pain, a tingling and numbing sensation in the right hand and right wrist, and dropping objects due to hand weakness. His examination of the claimant's right wrist/hand showed that Finkelstein sign was present, Tinel sign present, claimant had decreased sensation to the medium nerve, a clicking sensation, and weakness of 3 to 4 out of 5. The doctor diagnosed the claimant with internal derangement right wrist, hand, and elbow; right elbow cubital tunnel syndrome; right elbow epicondylitis; right hand/wrist TFCC tear; right carpal tunnel; and right de Quervain's syndrome. Dr. Hearns opined that the claimant's diagnosed conditions were causally related to his reported work as a station agent.

Claimant was examined by the SIE's consultant, Dr. Westerband, on April 14, 2016. However, Dr. Westerbrand's report has been precluded because it was not served in compliance with Section 137 of the Workers' Compensation Law.

Dr. Gupta was deposed on May 17, 2016, and testified that he first examined the claimant on June 4, 2015, at which time the claimant complained of pain at the base of his right thumb. The pain began while he was working as a station agent and had gotten progressively worse during his employment, which required him to make MetroCards, stock the machine, and handled money. Claimant had an EMG/nerve conduction velocity test done in September of 2015, which showed carpal tunnel syndrome and ulnar nerve entrapment at the right elbow. The claimant's EMG was consistent with the doctor's clinical exam of the claimant in October 2015. He diagnosed the claimant with right thumb carpal metacarpal joint arthritis, right carpal tunnel syndrome, and lunar nerve compression at the elbow. The doctor opined that the conditions were causally related to the claimant's job because the symptoms occurred while he was working. The EMG results indicated left carpal tunnel, but he did not perform a physical examination of claimant's left hand and could not confirm those findings. Osteoarthritis can be age related, but nerve compression was not part of the normal aging process. He did not know what the claimant's age was when he first started feeling the pain. He did not know if the claimant did something of a repetitive nature outside of work. The claimant did not begin to complain of numbness and tingling in his hands/arms until his October 2015 examination, but had stated that these symptoms had also occurred while he was working.

Dr. Hearns was deposed on May 18, 2016, and testified that he first examined the claimant on October 14, 2015, at which time he complained of bilateral upper extremity symptoms consisting of pins and needles, tingling sensations, and weakness in both hands. The claimant had worked as a station agent for the New York City Transit Authority where he counted money, gave change, gave out tokens, collected tokens from turnstiles, carried tokens in buckets, and more recently produced MetroCards with the handheld station computer. His examination of the claimant indicated positive Tinsel's signs in both wrists and the right elbow and positive Finkelstein sign in both wrists. Dr. Hearns diagnosed the claimant with bilateral carpal tunnel, right cubital tunnel, and bilateral de Quervain's syndrome. The claimant's EMG showed bilateral carpal tunnel and right cubital tunnel syndrome. Claimant did not have any other risk factors for developing carpal tunnel and cubital tunnel such as diabetes, space occupying lesion, trauma, and/or endocrine problems. The doctor opined that there was a causal relationship between the claimant's occupational duties and the development of his occupational condition based on his repetitive duties of counting money and producing MetroCards, as well as his previous duty of carrying buckets of tokens. Claimant was unable to determine with any precision when the symptoms began. He found the claimant's condition to be permanent and examined the claimant for a schedule loss of use on December 21, 2015. The claimant's job duties changed when the New York City Transit Authority went from using tokens to MetroCards. He did not conduct any range of motion studies. Claimant's carpal tunnel was due to his work activities, and not to aging.

The claimant testified at a hearing held on May 31, 2016, that he had been employed by the New York City Transit Authority and retired on May 30, 2015, because he started receiving shortage slips indicating that the money he sent in was short. He had worked as a station agent beginning in 1992 and sold tokens, which were replaced by MetroCards in 2003. He did not remember when he first noticed a problem with his hands. He thought his symptoms were arthritis and did not tell anyone at work. He did not know what part of his job caused his condition. He is diabetic. Drs. Gupta and Roberts told him his condition was not arthritis. Prior to the switch from tokens to MetroCards in 2003, his job duties included emptying turnstiles of tokens into a bucket, carrying them back to his booth, putting them in the money counter machine, and bagging them. He estimated that a bucket of tokens weighed between 50 and 75 pounds and he normally carried a bucket of tokens twice a day for 11 years. After the switch to MetroCards, he used his hands to program the keyboard to place amounts on MetroCards for 12 years. The claimant testified that MetroCards could also be purchased from a machine. He did not have any problems with his hands before he started working.

Claimant's supervisor testified on May 31, 2016, that she supervised the claimant for three years and the claimant did not complain of any problems with his thumbs, wrists, or elbows. She saw the claimant at least once a month.

In a decision and an amended decision, both filed on June 3, 2016, the WCLJ found that Dr. Westerband's IME was not produced timely and precluded it, found that Drs. Hearns' and Gupta's testimony regarding causal relationship was speculative and devoid of a specific history of repetitive job duties, and disallowed the claim.

In his application for administrative review filed on July 3, 2016, the claimant argued that the claim should be established for the right hand/wrist, right elbow, right carpal tunnel syndrome, and right de Quervain's syndrome.

In rebuttal, the SIE argued that the WCLJ's findings were fully supported by the record and must be upheld.

LEGAL ANALYSIS

To support a claim for an occupational disease, the claimant must demonstrate "a recognizable link between his or her condition and a distinctive feature of his or her employment" (Matter of Camby v System Frgt., Inc., 105 AD3d 1237 [2013] [internal quotation marks and citation omitted]; see Matter of Bates v Marine Midland Bank, 256 AD2d 948 [1998])" (Matter of Jones v Consolidated Edison Co. of N.Y., Inc., 130 AD3d 1106 [2015]). 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]).

Here, claimant testified regarding repetitive work duties he was required to perform involving his upper extremities, and both Dr. Gupta and Dr. Hearns opined that there was causal relationship between those duties and claimant's condition. There is no conflicting medical evidence on the issue of causal relationship. While Dr. Hearns was not aware that claimant had diabetes, the doctor nonetheless clearly related claimant's injuries to his work duties.

Therefore, the Full Board finds that preponderance of the evidence supports a finding that claimant sustained injuries to his right upper extremity as the result of years of repetitive work.

CONCLUSION

ACCORDINGLY, the WCLJ decision and amended decision filed on June 3, 2016, are MODIFIED to establish this claim for occupational right de Quervain's syndrome, right carpal tunnel syndrome, and right cubital tunnel syndrome, with a March 30, 2015, date of disablement. Disputed medical treatment/billing issues are resolved in favor of the medical providers. The deposition fee granted to Dr. Thomas Hearns is corrected to reflect that the fee is granted to Dr. Michael Hearns. The case is returned to the hearing calendar to consider permanency. The case is continued.