The Full Board, at its meeting held on November 14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 1, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant suffers from post-traumatic stress disorder (PTSD) arising out of a workplace incident on November 23, 2010.
The Workers' Compensation Law Judge (WCLJ) established the claim for PTSD.
The Board Panel majority affirmed the WCLJ's decision, finding that an altercation occurred and that the self-insured employer (SIE) did not obtain an independent medical examination to contradict claimant's treating psychologist's diagnosis of PTSD.
The dissenting Board Panel member found that the opinion of claimant's treating psychologist was based upon an inaccurate history, and therefore his opinion was not credible. The dissenting Board Panel member found that the PTSD claim should be disallowed.
The SIE requests Mandatory Full Board Review, arguing that the claimant failed to submit sufficient evidence that she suffers from causally related PTSD. The SIE notes that the history provided to claimant's psychologist was inconsistent with the claimant's description of the November 23, 2011, incident, and therefore was not credible. The claimant did not file a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a maintenance worker, filed an EC-3T (Employee Claim), on February 15, 2011, alleging that she sustained injuries including stress, stomach pain, tooth removal, and dizziness after being hit in the face with the antenna from a radio on November 23, 2010. The SIE controverted the claim on the grounds of no prima facie medical evidence, no accident, no accident arising out of and in the course of employment, and no causal relationship. The claimant and three of her supervisors testified at a hearing on June 29, 2011.
The claimant testified that, on November 23, 2010, she was speaking with a coworker who was holding an employer-provided radio. The claimant and the coworker argued and the coworker hit the claimant in the left side of her face with the radio antenna. When asked whether she sustained any injury as a result, claimant responded, "A little red, it wasn't like scratched or anything just a little red, yeah" (Transcript, 6/29/11 Hearing, p. 6). The claimant described the radio as weighing between one and two pounds, and the antenna as being five to six inches long. The claimant stated that she backed away after the coworker struck her and went to report the incident to her supervisor. She testified that she did not require first aid after the incident and never sought medical treatment prior to December 29, 2010.
The claimant testified that she continued to work until December 29, 2010, when she had a panic attack at work and was taken to the hospital by ambulance. The claimant stated that other incidents occurred between her and the coworker, including an occasion where the coworker yelled at the claimant for hitting her with the bathroom door, and an occasion where the coworker tripped the claimant. According to the claimant she did not report the incident to the police because she was told by the SIE's property maintenance supervisor that she would "get in trouble" if she pressed charges (Transcript, 6/29/11 Hearing, p. 6). The claimant also testified that she had a tooth removed as a result of the incident, but admitted that she had been having problems with the tooth prior to the assault.
The SIE's assistant property maintenance supervisor testified that she arrived at the maintenance office while the claimant was reporting the altercation on November 23, 2010. Claimant demonstrated how she was struck by the radio antenna. The witness was not aware of any other incidents between the claimant and the coworker. She testified that she saw the claimant having difficulty breathing on December 29, 2010, and called an ambulance to take the claimant to the hospital.
The SIE's grounds superintendent testified that when the co-worker was told that claimant alleged that she had struck her with a radio antenna, the co-worker stated that "she was like only playing and joking when she put the antenna toward her face. She never explained or expressed she hit her with the radio or antenna or struck her in a kind of way" (Transcript, 6/29/11 Hearing, p. 48). The claimant told the grounds superintendent that she wanted an apology from the coworker, which she received.
The SIE's property maintenance supervisor testified that the coworker stated that she accidentally brushed the claimant's cheek with the radio antenna. The claimant said that the coworker had put the radio into her face.
The claimant submitted the medical records of her treating psychologist, Dr. Hammer who diagnosed the claimant as suffering from PTSD as the result of being assaulted by a coworker while at work and found that she was totally disabled. The claimant was first examined by Dr. Hammer on December 29, 2010, at which time the claimant reported that "she was assaulted by a co-worker who hit her on the head with a hand-held communication device."
At a January 5, 2010, examination, Dr. Hammer noted that the claimant was experiencing "flashbacks of the assault from a co-worker who struck her in the head at work with a large, heavy portable phone (walkie-talkie supplied to and used by employees)."
At a January 19, 2011, examination, the claimant reported to Dr. Hammer "having excruciating headaches as a direct result of being hit on the head by a heavy mobile phone…"
At a February 2, 2011, examination, the claimant reported to Dr. Hammer that she continued to experience headaches in the "area of impact," and having "lost a rear molar (tooth) as a direct result of the assault."
Claimant recounted to Dr. Hammer at a February 9, 2011, examination "having been struck by her co-worker so hard that her knee gave way and she dropped to the floor…"
At a February 16, 2011, examination, the claimant told Dr. Hammer that she was "continuing to experience panic attacks related to the assault and being struck in her face. She felt the impact of the punch with the large mobile communications device used by employees in her head and neck and mouth, where the attack dislodged a rear molar."
At an examination on March 2, 2011, the claimant recounted "being attacked and beaten up by an out-of-control co-worker […]; her anxiety increases as she related having been [hit] so hard that she was knocked to her knees. Her flashbacks/night-time terrors are intensified by the pain she continued to experience all over her body from the assault."
In his notes from March 9, 2011, examination, Dr. Hammer indicated that claimant's "anxiety increases as she relayed the details of the assault: having been hit so hard that she was knocked to her knees."
At a March 23, 2011, examination, claimant told Dr. Hammer that "[s]he cannot sleep because she experiences flashbacks of the attack and pain in her face, head, neck, back and shoulder. She lost a rear molar (tooth) as a direct result of the attack."
In his March 30, 2011, note, Dr. Hammer wrote that claimant "reports continuing nighttime terrors and resulting insomnia owing to the pain she experiences in her back, neck and shoulder as a result of being hit in the face by a co-worker with a heavy mobile phone…"
Despite the numerous complaints of physical injuries noted in Dr. Hammer's reports, which claimant alleges were the result of being assaulted by a co-worker on November 23, 2010, the record contains no medical records of treatment for any physical injuries.
The WCLJ established this claim for PTSD and set the claimant's average weekly wage at $698.55. The WCLJ's findings were memorialized in a Notice of Decision filed July 5, 2011.
The claimant bears the burden of establishing "a causal relationship between [her] employment and [her] disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 ; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 ). To this end, "'the Board is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference, particularly with respect to issues of causation' (Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823 ; see Matter of Joyce v United Food & Commercial Workers Local 342-50, 307 AD2d 552 )" (Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 ).
In the present case, the history provided to Dr. Hammer by the claimant was inconsistent with the claimant's testimony regarding the events of November 23, 2010. Dr. Hammer recorded a history of the claimant being beaten with a heavy radio to the point where she fell to her knees and was dizzy. Dr. Hammer notes also indicate that the claimant had to have a molar removed and had pain over her entire body as a result of the attack.
However, the claimant testified that the radio weighed between one and two pounds and she was hit with the radio's antenna. She stated that she had a red mark on her cheek, but was not scratched. The claimant also testified that after the coworker struck her with the antenna, the claimant stepped back and told the coworker to stop. Thus, the claimant's sworn statement regarding the events of November 23, 2010; contradict the history of the accident which she provided to Dr. Hammer. As a result, Dr. Hammer's opinion cannot be considered credible regarding whether the claimant's PTSD is causally related to the November 23, 2010, incident. Since the claimant bears the burden of submitting sufficient medical evidence that she suffers from a causally related injury, the claim should be disallowed.
Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant did not submit sufficient evidence to establish a claim for PTSD.
ACCORDINGLY, the WCLJ decision filed on July 5, 2011, is REVERSED and the claim is disallowed. No further action is planned by the Board at this time.