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Thomas v. Verizon New England9/9/2005
DECISION OF THE APPELLATE DIVISION
These two (2) matters were consolidated by the court for trial and remain consolidated on appeal to the Appellate Division. The employer has appealed from the decision of the trial judge granting the employee's petition for workers' compensation benefits and granting permission to undergo surgery. After thorough review of the record and careful consideration of the arguments of the parties, we deny the employer's appeal and affirm the decision and decrees of the trial judge.
W.C.C. No. 03-06107 is an original petition in which the employee alleges that she developed problems with both elbows and bilateral carpal tunnel syndrome due to repetitive work activities and that she is totally disabled as of July 16, 2003. At the pretrial conference on January 9, 2004, the trial judge found that the employee developed bilateral epicondylitis due to her work activities and that she was partially disabled from July 16, 2003 and continuing. Both parties claimed a trial. After a full hearing on the merits, the trial judge concluded that the employee had developed an occupational disease, specifically bilateral medial, greater than lateral, epicondylitis, bilateral ulnar nerve compression, and bilateral carpal tunnel syndrome. He ordered the employer to pay weekly benefits for partial incapacity from July 16, 2003 and continuing. The employer filed a timely claim of appeal.
W.C.C. No. 04-02879 is an employee's petition requesting permission for surgery to be performed by Dr. Edward Akelman on both arms. The petition was denied at the pretrial conference and the employee filed a claim for trial. The matter was consolidated with W.C.C. No. 03-06107 for trial. At the conclusion of that proceeding, the trial judge found that the surgery was necessary to cure, rehabilitate or relieve the employee from the effects of her occupational disease. The employer has appealed this finding as well.
The employee testified that she began working for Verizon in July 2000 as a customer service representative in the collections department. Her job involved answering telephone calls and inputting data into a computer all day long. She related that in the latter months of 2000, her work station was modified and she believed that this led to the development of problems with her arms and hands. She stated that she gradually developed pain in her elbows and numbness in her hands which became severe around March 2003. She is right hand dominant and her right elbow and hand symptoms were worse than the left. After reporting her complaints to her primary care physician, she was referred to Dr. Kenneth J. Morrissey, an orthopedic surgeon.
Dr. Morrissey saw her on July 15, 2003 and advised her to stop working. Ms. Thomas testified that she has not worked at all since that date. Dr. Morrissey provided minimal conservative treatment while her workers' compensation claim was pending. As her symptoms continued to worsen, she sought a second opinion from Dr. Edward Akelman on March 3, 2004. She has now switched her treatment to Dr. Akelman who has recommended surgery to address bilateral carpal tunnel syndrome and bilateral ulnar nerve compression.
The employee stated that she never had any problems with her arms or hands prior to working at Verizon. She acknowledged that she has missed some time from work due to a back injury and acute asthma attacks. She indicated that she does not engage in any type of repetitive activity involving her arms or hands outside of work. Ms. Thomas asserted that in her present condition, she is not able to return to her former position with Verizon.
The medical evidence consists of the affidavit, reports a
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