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 24, 2011.
The issue presented for Full Board Review is whether the claimant suffered an accident arising out of and in the course of her employment.
The WCLJ established the claim for an injury to the back.
The Board Panel majority reversed the WCLJ's decision, finding that the claimant had failed to submit sufficient evidence to show that an accident occurred, and disallowed the claim.
The dissenting Board Panel member found that the claimant testified credibly and would have affirmed WCLJ's decision.
The claimant filed an application for Full Board Review March 22, 2011. The carrier filed a rebuttal on April 15, 2011.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, who works in the Returns Department of employer Nature's Bounty, filed a Form C-3 (Employee Claim) on March 10, 2010, alleging that she sustained a back injury on February 4, 2010, while lifting a box at work. The carrier controverted the claim on issues including prima facie medical evidence, accident, and causal relationship.
The claimant sought treatment at the emergency room of Good Samaritan Hospital on February 6, 2010. The emergency room report notes that the claimant complained of right leg pain and stated that she believed her sciatica was "acting up." The emergency room report states that claimant has a "history of sciatica" and "presents today with 1 day of pain along posterior right leg without back pain, feels similar to prior sciatica pain, without weakness or numbness." There is no mention of an accidental injury in the emergency room report.
The claimant was next examined by her physician, Dr. Krotz, on February 9, 2010. The Form C-4 signed by Dr. Krotz on March 12, 2010, based on the February 9, 2010, examination, indicates that the claimant suffered a work-related injury while lifting heavy boxes. However, in a February 9, 2010, narrative report, Dr. Krotz indicates that the reason for the visit was right leg pain and makes no reference to a work accident (document #165691069, p. 37). The claimant was re-examined by Dr. Krotz on March 8, 2010, and the narrative report for that examination references a work-related injury, and that the claimant had no pre-existing complaints prior to her work injury.
Dr. Principe, a chiropractor, treated the claimant on February 12, 2010. Dr. Principe noted that the claimant advised she injured herself while lifting boxes off of a skid. He opined that the claimant suffered from 70% impairment.
The claimant returned to the emergency room on February 15, 2010, complaining of aching and burning pain in her leg. The claimant again noted that she suffered from sciatica pain ten years prior, but did indicate that she suffered a work-related injury.
The claimant was examined by Dr. Firouztale, a neurologist, on April 15, 2010. The claimant reported that she had never had low back pain prior to February 4, 2010. Dr. Firouztale diagnosed the claimant as suffering from lumbar radiculopathy secondary to disc bulges and disc herniation resulting from her February 4, 2010, accident.
The claimant was examined by the carrier's consulting orthopedic surgeon, Dr. Moriarty, on May 3, 2010. The claimant reported to Dr. Moriarty that she had picked up a box and felt a popping sensation. The claimant told Dr. Moriarty that she took Motrin and finished working for the day, but the next morning, she could not get out of bed. The claimant advised Dr. Moriarty that she had been treated by Dr. Principe ten years prior for a back sprain. Dr. Moriarty diagnosed the claimant as suffering from recurrent sciatica and opined that the medical reports do not support causation because the initial medical reports include no history of a work accident.
The claimant was also examined by the carrier's consulting chiropractor, Dr. Salayka. The claimant reported that she had no prior back pain or injuries. Dr. Salayka diagnosed the claimant as suffering from resolving lumbar strain superimposed on a history of sciatica. Dr. Salayka noted that she was unable to determine whether a causal relationship existed between the claimant's condition and the alleged accident without additional medical records.
The claimant was examined by neurologist Dr. Fandos on May 25, 2010. The claimant advised Dr. Fandos that, after a busy day of working on February 4, 2010, she was not able to get out of bed the following day. Dr. Fandos opined that the claimant was totally disabled.
The claimant, her supervisor, and a disability consultant from the employer's short-term disability, testified at a hearing on May 28, 2010. The claimant testified that she had been working for the employer for twenty-two years. On February 4, 2010, the claimant was working in the returns department. Her duties that day involved unpacking boxes of returned merchandise and required that she lift boxes. The claimant stated that she lifted a box after lunch and felt a pull in her back. She testified that she asked the supervisor if she could get some Ibuprofen, but did not tell the supervisor that she was injured. The claimant worked for the rest of the day, but did not tell the supervisor that she was injured at work. The claimant testified that she knew she was supposed to tell her supervisor if she sustained a work injury.
The claimant testified that she did not go to work the next day because of pain and was unable to get an appointment with her regular physician. On Saturday, February 6, 2010, the claimant sought treatment at the Good Samaritan Medical Center Emergency Room. The claimant told the physician at the emergency room that her sciatica was "acting up." The claimant testified that her husband had looked up her symptoms on the Internet and determined that she was suffering from sciatica. The claimant testified that she told the physician that her sciatica was acting up because she "knew" she would be treated faster. The claimant stated that she next sought treatment from Dr. Krotz on the following Wednesday. She stated that she told Dr. Krotz that she was injured at work.
The claimant testified that she didn't know about workers' compensation and filled out paperwork for short-term disability benefits and Family and Medical Leave Act (FMLA) paperwork. The claimant stated that the employer's personnel department sent her FMLA paperwork to complete, and only when she called to ask a question two weeks later, did she inform the personnel department that she sustained an injury at work. The personnel department then told her that she needed to file a workers' compensation claim.
The claimant stated that she called the supervisor each week to advise that she would not be in to work. The claimant never told the supervisor that her injury occurred at work.
The claimant stated that she injured her back approximately ten years prior. She described the injury as a back sprain, which was fully resolved. The claimant stated that she never had sciatica pain prior to February 4, 2010.
The supervisor testified that she keeps notes each day of events at work, and her notes for February 4, 2010, do not indicate that the claimant reported any injury or asked for Ibuprofen. The supervisor stated that she first learned that the claimant believed the injury occurred at work on March 4, 2010, when the employer's personnel department told her of the claim.
The disability consultant testified that the disability carrier's records indicate the claimant told the disability carrier's representative in a transcribed telephone conversation in February 2010 that the injury did not occur at work. The disability consultant spoke with the claimant and her husband by telephone on March 5, 2010, regarding the short-term disability claim. After the disability consultant told the claimant that she would be receiving weekly benefits of $170.00, the claimant mentioned that her injury was work-related for the first time. The claimant's husband then said that the claimant had tried to file a workers' compensation claim.
At the close of the hearing, the WCLJ found the claimant credibly testified regarding her work accident and established the claim for an injury to the back. The WCLJ also authorized a nerve conduction velocity test. These findings were memorialized in a decision filed June 3, 2003.
Although WCL § 21(1) affords claimants the presumption that unwitnessed or unexplained accidents that occur in the course of employment also arise out of that employment, "that statute does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, … employment" (Matter of Bond v Suffolk Transp. Serv., 68 AD3d 1341  [citations omitted]). Thus, the presumption cannot be used to show that an accident occurred (Matter of Fedor-Leo v Broome County Sheriff's Dept., 305 AD2d 760 ). In this regard, a credibility determination must be made, and the Board is not bound to credit the testimony of the claimant (Matter of Wood v Colonial Tavern & Rest., 22 AD2d 984 , lv denied 15 NY2d 486 ).
Although the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 ), 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 the present case, the claimant's testimony conflicts with several medical records, and is therefore not credible. The claimant advised the emergency room physician that her pre-existing sciatica condition was "acting up." While the claimant alleges that she told the doctor this in order to receive treatment faster, this only further diminishes her credibility. The emergency room reports for claimant's treatment on February 6 and 15, 2010, as well as Dr. Krotz's February 9, 2010, narrative report, make no mention of a work-related injury.
The claimant's description of the accident is also inconsistent. The claimant testified that she lifted a box and felt a pop in her back. However, the claimant advised Dr. Fudos that, after a busy day at work, she was unable to get out of bed the following morning.
Finally, the claimant made numerous conflicting statements regarding whether she suffered from any prior back injuries or conditions. The claimant advised the emergency room doctors on two occasions that she suffered from a prior sciatica condition. She testified, and told Dr. Moriarty, that she had a fully resolved back sprain approximately ten years before the alleged work accident. She also advised Dr. Firouztale, Dr. Krotz and Dr. Salayka that she had no prior back injuries or conditions.
Since the claimant did not report the alleged accident to the employer until almost a month after it allegedly occurred, and no one witnessed the accident, the only evidence that an accident actually occurred is the claimant's testimony. In light of the claimant's numerous conflicting statements regarding the circumstances of her injury and whether she suffered from a prior condition, the claimant's testimony is not credible.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant did not sustain an accidental injury arising out of and in the course of her employment.
ACCORDINGLY, the WCLJ decision filed on June 3, 2010, is REVERSED. The claim is disallowed.