The Full Board, at its meeting held on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 25, 2011.
The issue presented for Full Board Review is whether the claimant was involved in a work-related accident.
In a reserved decision filed on July 2, 2010, and amended on July 14, 2010, the WCLJ disallowed the claim for work-related. In addition, the WCLJ failed to grant a deposition fee to Dr. Jones and assessed a $1,000.00 penalty against the claimant's attorneys pursuant to Workers' Compensation Law (WCL) § 114-a(3) for frivolous adjournments following the claimant's "no shows." Although this decision was amended by decision dated July 14, 2010, the WCLJ conclusion remained unchanged.
The majority of the Board Panel affirmed the WCLJ's decision insofar as it disallowed the claim, but modified the decision to direct a $400.00 deposition fee to Dr. Jones and to rescind the $1,000.00 assessment against the claimant's attorney pursuant WCL § 114-a(3).
The dissenting Board Panel member would reverse and establish the claim. The dissenting Board Panel member found the claimant provided credible
In its application for Mandatory Full Board Review, the claimant asserts that her claim for a work-related accident should be established based upon the credible testimony provided by herself and her physician.
No rebuttal was filed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is a controverted claim for an alleged work-related accident of August 6, 2009. The claimant filed a C-3 form on October 19, 2009, stating she slipped and fell while working for her employer on August 6, 2009, and injured her neck, head, back, waist, left shoulder, and whole left side. The claimant indicated she provided notice to her employer that same day. On November 18, 2009, the carrier filed a C-7 form indicating its intent to controvert this matter.
Claimant began treating with Dr. Otis Jones on September 21, 2009.
The initial hearing was held on December 15, 2009, where the WCLJ found prima facie medical evidence for the head, neck, back, and left hip. The WCLJ directed the carrier to depose Dr. Jones and submit the deposition transcript by February 8, 2010, and continued the case to January 14, 2010, to take testimony from the claimant and two employer witnesses.
The claimant failed to appear at the January 14, 2010, hearing and the case was marked no further action. The claimant filed a RFA-1 on January 15, 2010, requesting the case be reopened because she arrived late for the hearing. The Board granted her request and scheduled a hearing for March 10, 2010.
Prior to claimant's testimony, Dr. Jones provided deposition testimony on February 5, 2010. Dr. Jones testified he first examined the claimant for her alleged August 6, 2009, work-related accident on September 21, 2009, at which time the claimant advised him that she had slipped on some oil on the floor and struck the left side of her head on a shelf and hurt her left hip and the left side of her back. After performing an examination where the claimant had a lot of tenderness and a lack of full ranges of motion, he found her to be totally disabled because she had problems sitting which would prevent her to work at a sedentary job. X-rays were ordered, but the film did not reveal any positive findings.
SIFF had the claimant examined by its consultant, Dr. Mills, on February 2, 2010. Dr. Mills received a history that the claimant, on August 6, 2009, slipped and fell on the floor at work injuring her head, neck, low back, and left shoulder. Upon examination, Dr. Mills found the claimant, based upon her history, has a causally related cervical spine sprain, lumbar spine strain, and left hip contusion and the claimant had a mild degree of disability.
On April 21, 2010, the claimant testified that she began working for her employer, a restaurant, on August 6, 2009. On that same day, she was bringing food to the front when she fell down. Upon falling, she hit her neck on some boxes and fell onto her left side, hurting her neck, back, and lower abdomen. She provided notice to the owner that day. The owner then sent her home because the owner decided she was sick. She called the owner the next day and advised the owner of her work accident. Although she stated that she worked a total of six days for her employer before she fell down, she reiterated that her first day on the job was August 6, 2009. She was supposed to work six days per week but couldn't work the six days because of the work accident. She first stated that she never returned to work at the restaurant, but that she continued to work, though not for a long period of time because she could not perform any work. She did not seek medical attention for more than one month.
On June 9, 2010, the employer's owner testified that she owns a small restaurant where people usually come in to do some work for one or two days before they stop working. Every day, she keeps changing employees depending upon their needs. The claimant worked for her for only one or two days in the kitchen before she left. The claimant never reported a slip and fall at work. The owner testified that she (the owner) was not at the restaurant on August 6, 2009. After the employer's owner completed her testimony, the WCLJ heard verbal summations and reserved his decision.
In addition to the medical testimony, the claimant provided referrals for x-rays from the Floating Hospital dated September 18, 2009, and the x-ray reports of her lumbar spine, sacroiliac joints, pelvis, and cervical spine taken on September 23, 2009. These referrals and the attached correspondence did not provide any history of a work-related accident.
The carrier had the claimant examined by its consultant on February 2, 2010, where the claimant advised that she slipped and fell at work on August 6, 2009. The consultant found, if the history was correct, that the claimant suffered from casually related sprains of her neck and back as well as a left hip contusion.
The WCLJ issued a reserved decision on July 2, 2010, where he disallowed the claim for work-related injuries because he did not find the claimant or Dr. Jones credible. In addition, the WCLJ failed to grant a deposition fee to Dr. Jones and assessed a $1,000.00 penalty against the claimant's attorneys pursuant to Workers' Compensation Law (WCL) § 114-a(3)(i),(ii) for frivolous adjournments numerous times following the claimant's "no shows." Although this decision was amended by decision dated July 14, 2010, the WCLJ's conclusion remained unchanged.
The Board is vested with the discretion to weigh conflicting evidence and evaluate the credibility of witnesses (Matter of Donovan v BOCES Rockland County, 63 AD3d 1310 ). The Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 )
In this case, the Full Board finds the claimant credibly testified regarding the circumstances surrounding her accident on August 6, 2009. The claimant clearly testified that she fell while performing her work duties and provided timely notice to the restaurant's owner. The employer's owner conceded the claimant worked for her in August 2009. However, the balance of the employer's owner's testimony regarding the claimant's work accident is not credible since it is inconceivable that the employer's owner can run a business by hiring people off the street for one to two days at a time.
Based upon the foregoing, the Full Board finds that claimant sustained an accidental injury arising out of and in the course of her employment on August 6, 2009, which resulted in injuries to her back, neck and left hip. The case is returned to the trial calendar on the issues of average weekly wage, causally related disability, and lost time.
ACCORDINGLY, the WCLJ decision filed on July 2, 2010, and amended on July 14, 2010, is REVERSED and the case is established to the back, neck and left hip. Additionally, Dr. Jones is awarded an appearance fee of $400.00 for his deposition testimony of February 5, 2010, and the assessment of a penalty against the claimant's attorney pursuant to WCL §§ 114-a(3)(i) & (ii) is rescinded. The case is continued to the next available calendar on the issues of average weekly wage, causally related disability, and lost time.