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Case # G1529675
Date of Accident: 03/23/2016
District Office: NYC
Employer: American Airlines
Carrier: New Hampshire Insurance Co
Carrier ID No.: W154009
Carrier Case No.: B660071190000101600
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Polsky Shouldice & Rosen PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed January 17, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant timely filed this occupational disease claim pursuant to Workers' Compensation Law (WCL) 28.

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

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claim for carpal tunnel syndrome was untimely.

The carrier filed an application for Mandatory Full Board Review on February 15, 2017, arguing that the date of disablement should be set as 2012, and the claim for bilateral carpal tunnel syndrome should be disallowed as untimely.

The claimant filed a rebuttal on March 17, 2017, arguing that the Full Board should adopt the opinion of the Board Panel majority.

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

FACTS

In a C-4 dated March 23, 2016, the claimant's treating physician, Dr. Hecht, noted that the claimant developed pain and numbness in his hands in 2012, underwent an EMG test on May 31, 2012, which revealed bilateral carpal tunnel syndrome, and underwent a second EMG test on January 5, 2016, which also revealed bilateral carpal tunnel syndrome. Dr. Hecht also noted the claimant suffered from Parkinson's Disease. Dr. Hecht recommended physical therapy and an MRI of the wrists.

In a C-3 (Employee Claim) dated April 25, 2016, the claimant alleged he contracted occupational carpal tunnel syndrome from his years working with power tools. Also on April 25, 2016, the claimant completed a C-3.3 because he received previous treatment to his hands. By a decision filed June 17, 2016, the WCLJ directed the parties to submit deposition transcripts for Dr. Hecht and the carrier's medical consultant by August 15, 2016.

In an IME-4 (Independent Examiner's Report of Independent Medical Examination) dated July 6, 2016, for an examination held on the same day, the carrier's medical consultant, Dr. Isani, noted the claimant reported symptoms of pain with tingling and numbness in the fingers of both hands in 2012, for which he underwent an EMG, but the results of the test were not available for Dr. Isani's review. Dr. Isani also noted the claimant was working full duty and had not taken any time off. Dr. Isani examined the claimant and diagnosed bilateral carpal tunnel syndrome, and stated the bilateral carpal tunnel syndrome would be causally related to the claimant's employment if EMG studies confirmed the diagnosis.

At a hearing held on July 18, 2016, the claimant testified he worked for American Airlines in the facility maintenance department, and as part of his job duties, he was required to use power tools. He began to experience numbness in his hands in 2012, and he saw Dr. Levy, who prescribed an EMG study, which revealed moderate carpal tunnel syndrome. Dr. Levy did not treat him for the carpal tunnel syndrome, nor did Dr. Levy advise him the carpal tunnel syndrome was related to his employment. The claimant continued to work and treated with Dr. Hecht on March 23, 2016, who diagnosed carpal tunnel syndrome. He reported his diagnosis to his supervisor around March 26 or 27, 2016.

On cross-examination, the claimant testified that Dr. Levy never discussed the claimant's work duties with him, nor what caused the claimant's carpal tunnel syndrome, nor any treatment for the disease. The claimant testified he had a total of 3 EMG studies, one in 2012, one in 2015 and one in 2016. He believed in 2012 that using power tools and hand tools at work for five hours per day caused his carpal tunnel syndrome.

At the close of the July 18, 2016, hearing, the WCLJ established the claim for bilateral carpal tunnel syndrome and set the date of disablement as March 23, 2016. The findings were memorialized in a decision dated July 21, 2016, which also cancelled the direction for the physicians' depositions.

The carrier filed an application for administrative review, arguing that the WCLJ should have set the date of disablement as of 2012 because the claimant testified he underwent EMG testing in 2012, which revealed he had bilateral carpal tunnel syndrome, and because the claimant testified he knew in 2012 the carpal tunnel syndrome was related to his employment. The carrier maintained that if the WCLJ properly set the date of disablement as of 2012, the claim would have been time barred pursuant to WCL 28.

The claimant filed a timely rebuttal, and argued the WCLJ properly set the date of disablement of March 23, 2016. The claimant noted that the WCLJ has wide discretion to set the date of disablement, he had never been treated before for carpal tunnel syndrome, and Dr. Hecht was the first physician who determined the claimant's bilateral carpal tunnel was causally related to his employment. As such, the claimant maintained the WCLJ correctly determined date of disablement.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the carrier contends that it has attached claimant's medical records from 2012, in support of its argument that the date of disablement should be set in 2012 and the claim disallowed as untimely. The Full Board finds that any such evidence was not submitted timely and will not be considered (12 NYCRR 300.13[b][1][iii]).

Pursuant to WCL 28, the right to claim compensation for an occupational disease is not time barred if the claim is filed no more than two years after the date of disablement and after the claimant knew or should have known that the disease is or was caused by the employment (Matter of Patterson v Long Is. Jewish Med. Ctr., 296 AD2d 774 [2002]). Therefore, to determine the applicability of WCL 28 to an occupational disease claim, three pieces of information generally are necessary: (1) the date of disablement, (2) the date on which the claimant knew or should have known that the condition was related to employment, and (3) the date on which the claim was filed.

Pursuant to WCL 28 and 42, the Board has some latitude in determining the date of disablement in an occupational disease claim (Matter of Bonneau v New York City Dept. of Sanitation, 233 AD2d 796 [1996]; Matter of Hastings v Fairport Cent. School Dist., 274 AD2d 660 [2000], lv dismissed 95 NY2d 926 [2000]). "In making this determination, the Board is not bound to select the earliest possible date of disablement nor is it required to give preference to certain events over others" (Matter of Bishop v St. Joe Minerals, 151 AD2d 917 [1989], lv denied 75 NY2d 709 [1990]).

The Board has been affirmed when it has selected as the date of disablement the date of first medical treatment (Matter of Fredenburg v Emerson Power Transmission, 2 AD3d 1129 [2003]), the date that a physician "definitively concluded" that a condition was work related (see Hastings, 274 AD2d 660 [2000]), the date of claimant's first causally related lost time (see Matter of Glasheen v New York State Dept. of State, 239 AD2d 792 [1997]), and the date claimant permanently ceased working for the employer, even though he had previously had causally related lost time (see Matter of Cummings v Tenneco Chems. Div., Am. Plastics, 53 AD2d 944 [1976]). According to the Appellate Division, it is within "the power of the Board to fix any date of disablement supported by the evidence where the spirit and purpose of the occupational disease provisions of the Workmen's Compensation Law would thereby be furthered" (id.).

Here, although claimant was diagnosed with carpal tunnel syndrome in 2012, and testified that he believed that the condition was work related at that time, the condition was not found to be causally related by a physician until March 23, 2016. Claimant did not seek any treatment for the condition in 2012 and continued to work.

Therefore, the Full Board finds that while claimant knew that his condition was work related in 2012, the preponderance of the evidence in the record supports a finding that the date of disablement was March 23, 2016, and that this claim was timely filed pursuant to WCL 28.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed July 21, 2016, is AFFIRMED. No further action is planned by the Board at this time.