Case # G0134768
Date of Accident: 08/17/2009
District Office: Buffalo
Employer: Kaleida Health
Carrier: American Zurich Insurance Co
Carrier ID No.: W036636
Carrier Case No.: 186034981-001
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Hurwitz & DiMatteo
Panel: Robert E. Beloten

The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 11, 2011.

ISSUES

The issues presented for Full Board Review are:

1. whether there is sufficient evidence to find that the claimant sustained an accident arising out of and in the course of her employment on August 17, 2009;
2. whether the claim is barred by Workers' Compensation Law (WCL) § 18; and
3. whether there is sufficient evidence to find a causal relationship between the claimant's back condition and her work activities on August 17, 2009.

In a reserved decision filed on August 6, 2010, the Workers' Compensation Law Judge (WCLJ) established the claim for a low back injury that resulted from an accident on August 17, 2009, found that late notice should be excused because there was no prejudice to the employer, found sufficient evidence of causal relationship, and found no violation of WCL § 114-a.

In a Memorandum of Decision filed February 11, 2011, the Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would have reversed the WCLJ's reserved decision and disallowed the claim, finding that the record contains insufficient evidence that the injury to claimant's back was work related.

The carrier filed an application for Full Board Review on March 11, 2011. The claimant filed a rebuttal on March 22, 2011.

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

FACTS

WCB Case #80200152 is established for a low back injury that resulted from an accident on November 30, 2001, while the claimant was working for Erie County Medical Center (ECMC).

WCB Case #80307416 is established for injuries to the low back and right knee that resulted from an accident on March 28, 2003, while the claimant was working for ECMC.

This claim, WCB Case #G0134768, was indexed after the claimant filed a C-3 (Employee Claim) on October 8, 2009, to report that she injured her back while she was working as a nurse for Kaleida Health (Kaleida) on August 17, 2009. The claimant alleged that the injury occurred when she transferred a patient from the CT table to the cart. She alleged that she provided oral notice of her injury to her supervisor on August 19, 2009, and stopped working on the same day.

On October 2, 2009, the employer submitted a C-2 form to report the injury, and indicated that the claimant strained her lower back doing patient care while working on August 17, 2009. The section of the form to indicate whether the claimant provided notice of her injury has not been completed by the employer.

The first report of medical treatment is for physical therapy rendered on September 9, 2009, which was received by the Board on October 13, 2009 (Form OT/PT-4). In the attached narrative report, physical therapist Dr. Ruschmann noted that the claimant reported a history that on August 17, 2009, she "was at work, [three] long shifts in a row and started to have pain causing her to sit. By the end of the night needed help to get to her car, and had trouble walking since."

Dr. Caprow, the claimant's treating chiropractor, submitted a C-4.2 report of treatment on dates from August 26, 2009, to September 9, 2009. The typed entries of the case number (WCB Case #80200152) and date of injury (November 30, 2001) are crossed out on the form, and there are hand written notes which state "new injury" and provide a case number of WCB Case #G0134768, and a date of injury of August 19, 2009. In a narrative report dated October 1, 2009, Dr. Caprow noted that the claimant originally presented on August 26, 2009, for lower back pain and reported that she re-injured her spine while working at "ECMS" [sic - ECMC] and that her pain gradually worsened.

The record contains a narrative report from Dr. Geraci, the claimant's treating pain management physician, of an initial consultation of the claimant on September 1, 2009. Dr. Geraci noted the claimant's symptoms in her lower back and bilateral lower extremities but provided no history of how the injury occurred.

The intake form completed by the claimant for her examination with Dr. Geraci, dated August 27, 2009, is in the record (ECF Doc ID #161218828). In the section to describe how the injury occurred, the claimant wrote that she "worked Monday, Tues., Wed. On Wed. was unable to remain at work unless sitting most of day. I never sit at work. I had trouble walking on Wed. and couldn't Thursday." In the section to indicate whether her injury was work related, the claimant checked off "other" and wrote in "cumulative injury."

Dr. Charles, the claimant's primary care physician, submitted office notes from an examination on August 20, 2009, and noted that the claimant reported three days of progressive pain in her lumbosacral spine with radiculopathy. Dr. Charles also noted the claimant's history of previous low back pain and L5 radiculopathy at age 30. There is no indication that the claimant provided a history that the injury occurred at work.

The claimant submitted an RFA-1 form on November 4, 2009, and requested a hearing because she was not working and was receiving payments. Attached to the RFA-1 was a narrative report dated October 26, 2009, from Dr. Geraci. Dr. Geraci noted that at the time of his initial consultation on September 1, 2009, the claimant was seen under her private insurance because she did not have any compensation information and was not sure whether it was work-related at the time. However, Dr. Geraci noted that the claimant has now filed a formal workers' compensation claim, and states that she injured herself "on August 17, 2009, while transferring a patient from the cart to a CT table." Dr. Geraci further noted that the claimant had two previous back-related injuries in 2001 and 2003 at ECMC. Dr. Geraci concluded that the claimant's condition is causally related to a workers' compensation injury, and opined that the claimant has a temporary partial moderate disability.

At a hearing on December 16, 2009, the attorney for the carrier indicated that the basis for the claim was unclear since the claimant worked consecutive shifts for both Kaleida and ECMC. The carrier further argued that the injury resulted from cumulative work at both employers, and there was no allegation of a specific alleged incident during the claimant's initial treatment. The claimant's attorney responded that there was a specific accident that occurred on August 17, 2009. The WCLJ then questioned the claimant regarding the nature of her claim. The claimant testified that she was fine when she went to work at Kaleida on the morning of August 17, 2009, and by the time she left after moving a patient from the CT scan table, there was some pressure in her back. She deteriorated over the next four days. The claimant's attorney confirmed that the nature of the claim is not cumulative, but rather that the claimant had an accident that occurred at Kaleida. Based on this information, the WCLJ found insufficient evidence to put ECMC on notice, and the case was continued for the completion of medical testimony, and for the testimony of the claimant and lay witnesses.

Dr. Carr, the carrier's orthopedic consultant, submitted an IME-4 report of an examination on December 17, 2009, and noted that the claimant reported that while she was working as a nurse on August 17, 2009, "she was moving a patient to the CT table and in doing so she felt a pull in her low back." Her pain progressed over the next few days and "[b]y the third day, she states that she felt worse…and she could hardly walk." Although the claimant reported prior back strains in 2002 and 2003, she reported to Dr. Carr that "her back was fine prior to this claim." Dr. Carr was unable to establish a causal relationship between her current complaints and the August 17, 2009, claim. Dr. Carr explained that there are no objective findings that would indicate any specific causal relationship, and that the claimant has a long history of pre-existing back pain with recurrent flare-ups. Dr. Carr further noted that when the claimant was first seen by her primary care physician after the alleged accident date, there was no mention of a work-related event. Also, when she first treated with her pain management physician she failed to mention any work injury. Therefore, Dr. Carr found no causal relationship since it was unclear when this history of a lifting injury was developed. Dr. Carr found no disability or need for formal restrictions, or need for any further orthopedic treatment.

At the hearing held on January 12, 2010, the claimant testified that on August 17, 2009, while working for Kaleida, she felt pulling and pain in her lower back after moving a patient for a CT scan. She continued her shift that night even though she was sore and tired. The next day she worked for ECMC, but with difficulty. On August 19, 2009, she returned to work at Kaleida but had "real trouble" and "tremendous pain" (Hearing Transcript, 1/12/10, p. 9). However, she completed that shift because she was scheduled to leave for a vacation the next day. She informed her supervisor of her back pain. Although she was asked if there was specific accident, she told her supervisors that she could not pinpoint when she was injured because she just truly did not know. She first sought medical treatment on August 20, 2009, but did not give a specific history of a work-related accident. It was not until after a couple of conversations with supervisors and an individual at the Workers' Compensation Board that she reported that the injury occurred at work. In the third week of September, she indicated that the incident occurred on August 17, 2009.

On cross-examination, the claimant acknowledged that she had two prior work-related back injuries and that she did not indicate a specific accident during her initial treatment after the injury. Also, when she initially contacted the employer about her injury, she reported that her chiropractor was going to file under her old claim because the claimant was unable to recall a specific incident that caused her recent injury. However, the insurer for the old claim denied the bills (see Hearing Transcript, 1/12/10, p. 38). When she initially spoke to the employer, the claimant was unable to recall anything she did at work that caused the problem. Therefore, the employer told her to file a claim for disability benefits. At some point, the claimant reported to the employer that she thought her injury was due to the wear and tear of being a nurse for so many years. She did this because she "was so upset at that point that people kept demanding that [she] have x-ray vision and come up with the exact second when [she] was supposed to have felt this miraculous herniation, and it just wasn't happening that way" (Hearing Transcript, 1/12/10, p. 36). The employer then told her that since there was no specific injury, she had to file for disability, not workers' compensation. She spoke with the employer again on September 30, 2009, and was very upset because her bills were being denied under her old workers' compensation claim, and by her private insurance. On September 30, 2009, she completed an incident report. She did recall the specific incident that occurred on August 17, 2009, prior to then, and she thinks she reported it to someone prior to September 30, 2009, but she does not recall who she reported it to. She called into work on either August 22nd or 23rd, and she spoke to one of the nursing supervisors and advised him that she hurt her back at work. The nursing supervisor "wanted a specific incident," but she "couldn't give him one at that point" (Hearing Transcript, 1/12/10, p. 44).

At the hearing held on January 12, 2010, the Integrated Absence Specialist for Kaleida testified that she spoke with the claimant on August 31, 2009, and the claimant reported that she injured her back. The employer witness questioned the claimant whether there was a specific incident and the claimant said no. Rather, she stated that "[b]asically, she went in to work and by noon she couldn't walk" (Hearing Transcript, 1/12/10, p. 52). The claimant asked whether she could file a claim based on the wear and tear of being a nurse over the years and the employer witness informed her that "compensation would not cover something like that, you have to come up with a certain incident" (Hearing Transcript, 1/12/10, p. 54). The employer witness subsequently spoke to the claimant on September 9, 2009, and the claimant informed her that she believed the injury was related to her work. No specific information concerning the accident was provided. During a later conversation on September 30, 2009, the employer witness told the claimant to file a workers' compensation claim. The employer witness did not learn of the claim involving the specific accident on August 17, 2009, until a C-2 form was filed.

Dr. Caprow testified by telephone deposition on January 25, 2010, that he first saw the claimant in relation to this incident on August 26, 2009, and at that time, the claimant did relate an experience of pain from transferring a patient on August 17, 2009.

Dr. Charles testified by telephone deposition on February 2, 2010, that he examined the claimant on August 20, 2009, and that initially the claimant did not report a work-related accident to him. On September 9, 2009, the claimant told Dr. Charles that she was claiming a workers' compensation injury from an accident on August 17, 2009.

Dr. Geraci testified by telephone deposition on February 8, 2010, that he first examined the claimant on September 1, 2009, and indicated that the claimant had complaints of pain stemming back to August 19, 2009, but that it was not until October 26, 2009, that he learned of the work-related history on August 17, 2009. Dr. Geraci opined that based upon his examinations of the claimant and knowledge of the history, he found the claimant's back condition to be causally related to the August 17, 2009, incident.

The parties submitted written summations and in a reserved decision filed on August 6, 2010, the WCLJ established the claim for a low back injury that resulted from an accident on August 17, 2009. The WCLJ found "the testimony of the claimant credible and reliable, as well as the reports and testimony of Dr. Caprow and Dr. Geraci on the issue of causal relationship." The WCLJ also found that "[a]ny claimed late notice of this claim is excused [since the] claim was fully investigated and there was no prejudice to the employer and carrier." Finally, the WCLJ found insufficient evidence that the claimant violated WCL § 114-a. The WCLJ made awards for periods of lost time, and reduced earnings, and awarded a fee in the amount of $1,400.00 to the claimant's attorney, pending submission and approval of a fee application. In a supplemental decision filed on September 2, 2010, the WCLJ approved the attorney's fee in the amount of $1,400.00.

LEGAL ANALYSIS

Although WCL § 21(1) affords the claimant a presumption that unwitnessed or unexplained accidents "which occur within the time and place limits or course of employment are presumed to arise out of the course of employment" (Matter of Scalzo v St. Joseph's Hosp., 297 AD2d 883 [2002]), it is clear that this presumption cannot be used to show that an accident occurred (Matter of Fedor-Leo v Broome County Sheriff's Dept, 305 AD2d 760 [2003]). In this regard, a credibility determination must be made. When there is conflicting evidence or testimony, the weight given to such evidence or testimony and the choices made based upon them are matters for the trier of fact (Matter of O'Hara v Bigger, 228 AD2d 507 [1996]).

Here, the claimant filed her claim to allege an accidental injury occurred on August 17, 2009, when she transferred a patient from a CT table. The first medical evidence received by the Board which provides a history of back pain from an accident on August 17, 2009, when the claimant transferred a patient from a CT table, was contained in Dr. Geraci's report of an examination on October 26, 2009.

Although the claimant was examined for her back pain by Dr. Charles on August 20, 2009, the notes from Dr. Charles on that date provide no indication that the claimant reported that an injury had occurred at work and also noted the claimant's history of previous low back pain. The next date of treatment was on August 26, 2009, with Dr. Caprow, who initially submitted his report to the Board under WCB Case #80200152, with a date of injury of November 30, 2001. Dr. Caprow testified that when he treated the claimant on August 26, 2009, she did report an accident at work on August 17, 2009. However, Dr. Caprow's testimony in this regard is not credible since his report of the August 26, 2009, treatment documents no such work history and the report of that examination was initially submitted to the Board for an entirely different claim. The next date of treatment was on September 1, 2009, with Dr. Geraci who provided no history of how the injury occurred. The intake form prepared by the claimant prior to that examination indicates that the claimant reported that she had worked three days in a row and on the third day, she was unable to continue working without sitting. On that form, the claimant specifically denied that she had a work-related injury. The next date of treatment was on September 9, 2009, for physical therapy, and the report submitted for that date provides a history that on August 17, 2009, she "was at work, [three] long shifts in a row and stated to have pain causing her to sit. By the end of the night needed help to get to her car, and had trouble walking since." No specific accident was reported.

The credible medical evidence in the record fails to support the claim for a back injury that resulted from an accident at work on August 17, 2009, when the claimant was transferring a patient from a CT table. Specifically, the contemporaneous medical evidence provides no such history of injury and there is no evidence that the claimant reported any specific incident on August 17, 2009, until Dr. Geraci's examination on October 26, 2009, which was over two months after the accident allegedly occurred.

During her testimony on January 12, 2010, the claimant was questioned about her failure to initially report that she had an accident at work on August 17, 2009, when she had back pain that resulted from the transfer of a patient from a CT table. She explained that although she was initially asked by her supervisors if there was specific accident, she was unable to pinpoint when she was injured. The claimant further testified that her chiropractor was going to file under her old claim because the claimant was unable to recall a specific incident that caused her recent injury. However, the insurer for the old claim denied the bills. The claimant conceded that she became upset because her bills were being denied under her old workers' compensation claim, and by her private insurance. Claimant testified that on either August 22nd or 23rd, 2009, she spoke to one of Kaleida's nursing supervisors and advised him that she hurt her back at work, but did not report a specific accident. However, the claimant also testified that she thinks that on or about August 22, 2009, she reported a claim to her supervisor with a specific accident date on August 17, 2009. Nevertheless, she conceded that she did not complete an incident report with the employer until September 30, 2009.

Based on the numerous inconsistencies in the claimant's testimony in her attempt to explain why she initially failed to report the accidental injury to either her employer or her treating physicians, the Board cannot reasonably determine whether the claimant failed to file her claim because (1) she could not recall a specific incident and thought it was a cumulative injury; (2) she thought it was related to her old workers' compensation injury; or (3) she thought it was unrelated to her work and that a disability claim should be filed.

Therefore, the Full Board finds that the claimant was not credible, and as such, the record contains insufficient evidence that the claimant sustained an accidental injury at work on August 17, 2009.

The remaining issues of whether the claimant provided timely notice to the employer as required by WCL § 18, and whether the record contains sufficient evidence of causal relationship need not be considered since the claim is being disallowed for the claimant's failure to present sufficient credible evidence that she sustained an accident arising out of and in the course of her employment on August 17, 2009.

CONCLUSION

Accordingly, the WCLJ reserved decision filed August 6, 2010, and the supplemental decision filed on September 2, 2010, are REVERSED, and the claim is disallowed. The case is closed.