Case # G0293844
Date of Accident: 07/15/2010
District Office: Peekskill
Employer: Gateway Building Svcs
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 64390008-174
Date of Filing of Decision: 06/22/2012
Claimant's Attorney: William D. McGillicuddy Law Office PC
Panel: Robert E. Beloten

The Full Board, at its meeting held on May 15, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 9, 2011.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether the claim was properly established;
2. whether the claimant provided timely notice to her employer pursuant to WCL § 18; and
3. whether WESCO should have been discharged and removed from notice.

By decision filed on December 6, 2010, the Workers' Compensation Law Judge (WCLJ) found the claimant credible, established the claim for work-related injuries to the claimant's neck and back, and directed WESCO to submit proof of alleged non-coverage.

In a Memorandum of Decision filed on May 9, 2011, the majority found that the claimant provided credible testimony of a July 15, 2010, work accident that supports the establishment of the case for work-related injuries to the claimant's neck and back. The majority further found that the claimant credibly testified that she told her supervisor about her accident on the date that it occurred, the employer had knowledge of the claimant's accident on the same day that it occurred, and therefore, pursuant to Workers' Compensation Law (WCL) § 18, the claimant's failure to provide written notice within 30 days of the accident is excused. Last, the majority found that since the WCLJ did not make a finding on the issue of dual coverage and directed WESCO to produce proof of non-coverage, the issue of dual coverage was not properly before the Board Panel.

The dissenting Board Panel member would have found that the claimant's testimony was incredible, particularly her testimony that timesheets were brought to her for her to sign, and therefore the claim should be disallowed.

In its application for Mandatory Full Board Review, filed on May 13, 2011, the State Insurance Fund (SIF) contends that the claim should be disallowed.

The claimant filed a rebuttal to SIF's application on May 25, 2011, contending that the majority's decision should be affirmed as it reflects the greater credibility of the claimant, and the unanimous medical evidence in the record.

In its application for Mandatory Full Board Review, filed on June 8, 2011, WESCO contends that it should be discharged and removed from notice. WESCO further contends that SIF's assertion that the employer had dual coverage is erroneous as a matter of law pursuant to WCL § 54(4).

No rebuttal was filed in response to WESCO's application.

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

FACTS

On August 27, 2010, the claimant filed a Form C-3.0, Employee Claim, alleging that she was injured on July 15, 2010, while working for the employer as a cleaner. The claimant alleged that she slipped on a wet floor in the ladies room and injured her left shoulder, neck, and back. The claimant alleged that no one witnessed her accident and that she gave oral notice to her supervisor on the same day as her accident. The claimant indicated that on August 2, 2010, she stopped working and first treated.

The first medical in the Board file is a letter from St. Luke's Cornwall Hospital dated August 2, 2010, which indicated that the claimant cannot work for 2 days.

On September 8, 2010, the Board issued a Form EC-84, Notice of Indexing, indexing the case against WESCO. In response WESCO's third-party administrator Cardinal Comp LLC submitted a letter to the claimant dated September 16, 2010, indicating that it was the third-party administrator for WESCO who provided the workers' compensation coverage to the employer. Thereafter, on September 21, 2010, WESCO submitted a copy of the Notice of Indexing, with a note typed on the notice stating that WESCO was not the proper carrier, and that the proper carrier was SIF.

In the Board file is a printout from the Board's coverage database, IC2, which indicates that the employer had a policy with SIF commencing on February 28, 2010, and a policy with WESCO commencing on May 30, 2010.

A representative from Cardinal Comp LLC submitted a letter to the Board dated September 21, 2010, requesting that Cardinal and WESCO be discharged and removed from notice, as the proper carrier was SIF.

On September 22, 2010, the Board issued a Form EC-84, Corrected Notice of Indexing, indexing the claim against SIF.

On October 6, 2010, SIF submitted a Form C-7.0, Notice That Right to Compensation is Controverted, controverting the claim on multiple grounds.

On October 14, 2010, WESCO submitted a Form C-7.0 controverting the claim solely on the issue of coverage.

The claimant's treating physician, Dr. Carter, submitted a medical narrative report, for treatment rendered on August 11, 2010, that provided a history that the claimant slipped and fell at work in December 2009, and then again in July 2009. Dr. Carter diagnosed the claimant with lumbar sprain/strain and lumbar radiculopathy, and opined that she was temporarily totally disabled based on her job description. Dr. Carter submitted a Form C-4AMR, Ancillary Medical Report, for treatment rendered on September 16, 2010, and September 17, 2010, wherein the doctor opined that the claimant's injuries were causally related to her July 15, 2010, work accident.

SIF's orthopedic consultant, Dr. Morgan, examined the claimant on October 22, 2010, and submitted a corresponding report. Dr. Morgan reported a history that on July 15, 2010, the claimant slipped and fell on a wet floor at work, and opined that the claimant has a moderate partial degree of disability.

The employer submitted a letter dated November 5, 2010, indicating that WESCO was not its carrier, and that its proper carrier was SIF, with a policy for the period of February 28, 2010, to February 28, 2011.

The claimant testified, with the aid of a Spanish interpreter, on December 1, 2010, as follows: She is employed by Gateway Building Services as a cleaner. While working on July 15, 2010, she went into the bathroom and slipped and fell on a wet floor, hurting her back, neck, arm, and leg. She clarified that she hurt her entire left side. No one was with her when she fell at work. When she left the ladies room she saw her colleague. She told him about her accident. Her supervisor got there 10 minutes after she fell. She told him what had happened. Using an expletive, he essentially told her that he did not care. Two other people witnessed her conversation with her supervisor, his brother and a colleague. As a result of her work injury, she missed five days from work. Her supervisor paid her for the five days, but told her to give back to him an amount equal to three days' pay. During the week that she was not working, she took pills to help her. On August 2, 2010, she had a severe pain and went to the emergency room. She reiterated that between July 15th and August 2nd she only missed five days, she was paid for those five days, and had to give her supervisor the equivalent of three days' pay. She went out of work on August 2, 2010, and has not worked since. She went to the emergency room three times in early August 2010. On August 12, 2010, she started treating with Dr. Carter, and has treated with him ever since.

On cross-examination the claimant testified after the accident, she worked the rest of her shift with the help of her supervisor's brother. The five days she missed from work was immediately following the date of the accident. However, she listed August 2, 2010, as her last day of work on the Form C-3 because her supervisor did not report the accident, and had paid her for the five days that she was out of work. She returned to work after missing the five days, and continued to work until August 2, 2010.

Her supervisor testified on December 1, 2010, as follows: He is the claimant's supervisor. The claimant never informed him that she hurt herself at work on July 15, 2010. He found out that the claimant was alleging a work accident at the end of August 2010, when he received a call from the office asking if he knew anything about the claim. The claimant stopped working around August 3, 2010. The claimant did not miss anytime from work between July 15, 2010, and August 3, 2010. She performed her normal duties and did not make any complaints. He personally saw her at work during that period and has records that show that she did not miss anytime from work. He has the daily sheets that employees sign when they arrive at work that the claimant signed during those days. After the claimant stopped working on August 3, 2010, she called him saying that she would soon return to work and that she would be sending him a doctor's note. He had asked her why she had stopped working. She told him that she had stopped work because she was having bad headaches, the medicine she was given did not help, and she was going to the hospital to cure her headaches.

During the December 1, 2010, hearing, the claimant was shown the daily sheets for July 16, 2010, through July 30, 2010, on which her signature appears each work day and was asked if it was her signature. The claimant responded that her supervisor brought the daily sheets to her house for her to sign that she was present for the five days that she was actually out of work. He had told her to sign in places so that nobody would notice. She signed the sheets as if she was present on those five days because she needed the money.

Her supervisor was then recalled and asked if he had brought the daily sheets to the claimant's house. He responded that he had no reason to bring the logs to her house. The procedure is that employees sign the daily sheets at the job-site, and that is what happened.

The daily sheets were submitted into evidence during the December 1, 2010, hearing.

At the conclusion of the hearing, the WCLJ noted the conflicting testimony of the claimant and her supervisor, and that since this is an unwitnessed accident there is a presumption under WCL § 21. The WCLJ found that the claimant had testified credibly to having sustained an accident on July 15, 2010. He established the case for work-related injuries to the claimant's neck and back; set the average weekly wage at $233.59, on a tentative basis; held in abeyance the period from July 15, 2010, to August 12, 2010; made an award for the period from August 12, 2010, to December 1, 2010, at $100.00, tentative rate, per week; directed continuing payments at $100.00, tentative rate, per week; awarded the claimant's attorney a $250.00 fee; directed the claimant to produce medical evidence for all periods of claimed lost time; and directed Cardinal Comp. to submit proof of alleged non-coverage (i.e. a letter from the underwriter saying that they never provided coverage, or if they did, the period that coverage was provided, and the proper evidence of cancellation). The case was continued. The WCLJ's findings were memorialized in a decision filed and amended on December 6, 2010.

LEGAL ANALYSIS

WCL § 18/Establishment of the claim

The Board is the sole arbiter of witness credibility (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252 [2009]). As long as credibility determinations are supported by substantial evidence, the fact that some contradictory evidence was also introduced does not change the result (Matter of Scollo v Joseph J. Pietrafesa Co., Inc., 105 AD2d 515 [1984]).

"[WCL] § 18 requires claimants seeking benefits to provide their employers with written notice of a compensable injury 'within thirty days after the accident causing such injury' (see Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784 [2005]) … Failure to provide such notice bars any claim, unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced (see WCL § 18). The Board is not required to excuse a claimant's failure to give timely written notice even if one of these grounds is proven; the matter rests within the Board's discretion" (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402 [2009]). When it is alleged that prompt oral notice was provided to the employer or to the employer's agent, "'resolution of the sufficiency of a claimant's oral notice is a matter within the exclusive province of the Board'" (id. quoting Matter of Pisarek v Utica Cutlery, 26 AD3d 619 [2006]).

The claimant testified that while she was at work on July 15, 2010, she was injured when she went to the ladies room, and slipped and fell on the wet floor. The claimant's testimony regarding how the accident occurred was consistent with the Form C-3 she filed, the history she gave to her treating physician, and the history she gave to the carrier's consultant. The claimant further testified that she told her supervisor about her work-related accident on the same day that it had occurred. The claimant's treating physician, Dr. Carter, provided a history of the claimant's July 15, 2010, work accident, made a diagnosis and opined that the claimant's injuries were causally related to her July 15, 2010, work accident.

Although there are discrepancies regarding whether the claimant lost time from work immediately following her July 15, 2010, work accident, and regarding the daily sheets that she signed, that goes to the issue of lost time and not whether or not the claimant suffered a work related accident. Furthermore, the claimant is only asserting a claim for lost time following her August 2, 2010, treatment in the emergency room.

The claimant did not provide written notice as is required by WCL § 18, however, it is within the Board's discretion whether a claimant's oral notice to an employer is sufficient to waive the written notice requirements set out in WCL § 18 (Dusharm, 68 AD3d 1402 [2009]). The claimant's credible testimony that she provided oral notice to her supervisor on the date of the accident, supports the WCLJ's and the majority's finding that the employer had knowledge of the claimant's accident on the date that it occurred, excusing the claimant's failure to provide written notice pursuant to WCL § 18.

Therefore, the Full Board finds, upon review of the record, that the preponderance of the evidence supports the determination that the claimant was credible and the establishment of the case for work-related injuries to the claimant's neck and back that occurred on July 15, 2010.

Coverage

With respect to the issue of dual coverage, the Full Board finds that as the WCLJ did not make a finding on the issue of dual coverage, but directed Cardinal Comp LLC to submit proof of non-coverage, the issue of dual coverage is not properly before the Full Board.

It is noted that although the record shows that WESCO had a policy covering the employer for the period from May 30, 2010, to May 30, 2011, there is no proof in the Board file that WESCO's policy was cancelled in accordance with WCL § 54(5) prior to the claimant's July 15, 2011, accident, as WESCO was required to do (see e.g. Matter of Feely v Eagle Plastics Corp., 266 AD 936 [1943]).

CONCLUSION

ACCORDINGLY, the WCLJ amended decision filed on December 6, 2010, is AFFIRMED. The case is returned to the trial calendar to address all outstanding issues. The Board is to place on notice Cardinal Comp, LLC at P.O. Box 15096, Albany, NY 12212 and WESCO Insurance Company at 300 Alexander Rd, Suite 300, Princeton, NJ 08540, on the issue of dual coverage. The case is continued.