FIFER v. MARINE REPAIR SERVICE (ALJ KIRBY)

ALJ Kirby credits treating physician and awards medical treatment in carpal tunnel claim.  In so doing, ALJ rejects defenses of untimely notice and untimely filed claim.

Full Decision

Excerpts:

I give more weight to the credible testimony of Claimant and well-supported opinion of
Dr. Franchetti, attributing the initiation of Claimant’s bilateral carpal tunnel syndrome to his
work for Employer. A doctor’s reasoning that is both supported by objective medical tests and
consistent with all the documentation in the record is entitled to greater probative weight. Fields
v. Island Creek Coal Co., 10 B.L.R. 1-19 (1987). Additionally, to be considered well reasoned,
the physician’s conclusion must be stated without equivocation or vagueness. Justice v. Island
Creek Coal Co., 11 B.L.R. 1-91 (1988). Accordingly, I find that Claimant has established by a
preponderance of the evidence that his bilateral carpal tunnel syndrome was caused by,
contributed to, or aggravated by his work for Employer which involved the repetitive use of
vibratory and pounding hand tools.

Claimant testified that he has continued to experience bilateral hand pain and numbness
ever since he worked for Employer. The persistence of the bilateral hand conditions after
Claimant left employment for Employer does not break the link between his duties for Employer
and his bilateral carpal tunnel syndrome.

Timely Notice

At the very latest, Claimant was aware of the relationship between his injury and

employment on March 22, 2010, when Dr. Franchetti told him that he had bilateral carpal tunnel
syndrome that was occupationally related to his work for Employer. The record does not reflect
that Claimant gave notice to Employer within 30 days of attaining this knowledge. Rather, his
first action did not occur until August 3, 2010, when he filed a claim with the Office of Workers’
Compensation Programs. Employer was not notified of the claim and Claimant’s alleged injury
until August 16, 2010. Accordingly, I find that Claimant did not comply with the Section 12(a)
requirement to provide Employer with notice of his injury within thirty days.
Given Claimant’s failure to provide the required notice, I must determine pursuant to
Section 12(d) whether the claim should be barred. Examining Section 12(d), the only ground for
excusal which may exist in this case would be that Employer has not been prejudiced by failure
of Claimant to provide notice. In its brief, Employer has not articulated any way in which it has
been prejudiced by Claimant’s failure to file timely notice. Upon review of the entire record, I
do not find that Employer has been prejudiced. Employer has not been hindered in its ability to
investigate the claim and to obtain independent medical examination. Accordingly, I find that
pursuant to Section 12(d)(2), Claimant’s failure to file timely notice does not bar his claim.

TIMELY CLAIM

However, he was unaware at this time that such condition was occupationally
related as it does not appear from the records that Dr. Lee opined as to the etiology of the
condition. It appears that Dr. Lee did not go beyond conducting the test and making the
diagnosis. I find that it was not until March 22, 2010, when he sought evaluation and treatment
from Dr. Franchetti, that Claimant became aware of the etiology of his carpal tunnel syndrome
and that it was, in fact, related to his work with repetitive vibrating and pounding tools for
Employer. I also find that Claimant’s condition constitutes an “occupational disease,” and
Claimant thus had two years in which to file his claim. See D.L. v. Labor Ready Inc., BRB No.
08-0230, (Sep. 22, 2008); citing LeBlanc v. Cooper/T. Smith Stevedoring, Inc., 130 F.3d 157, 31
BRBS 195 (CRT) (5th Cir. 1997); Gencarelle v. General Dynamics Corp., 892 F.2d 173, 23
BRBS 13 (CRT) (2d Cir. 1989); see also, Carlisle v. Bunge Corp., 33 BRBS 133 (1999), aff’d,
227 F.3d 934, 34 BRBS 79 (CRT) (7th Cir. 2000). Accordingly, I find that Claimant filed his
claim in a timely manner. I also note that even if the filing period were one year rather than
two, Claimant still filed his claim in a timely manner.