The Full Board, at its meeting on October 16, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on December 15, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant incurred a compensable injury to his right knee.
In a decision filed on June 6, 2011, the Workers' Compensation Law Judge (WCLJ) established the claim for a work-related right knee injury.
The Board Panel majority affirmed the WCLJ's decision filed on June 6, 2011.
The dissenting Board Panel member would rescind, without prejudice, the WCLJ decision filed on June 6, 2011, and return the case to the trial calendar with a direction for the claimant to produce the medical records from the primary care physician who treated the claimant.
On January 17, 2012, the self-insured employer (SIE), filed an application for Mandatory Full Board Review, arguing that it rebutted the presumption afforded to the claimant in Workers' Compensation Law (WCL) § 21, and thus the claim should be disallowed.
On January 24, 2012, the claimant filed a rebuttal, arguing that the credible evidence in the record supports the establishment of his claim.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant filed a C-3 (Employee Claim) alleging that he injured his right knee while working as a hospital security guard on August 24, 2010. The claimant indicated that he was treated on the same day of the accident by Dr. Brown at the emergency room at Lenox Hospital, where he worked.
The file contains a report dated August 25, 2010, from Dr. Forde, wherein the doctor recorded a history that the claimant presented with a complaint of right knee pain for two weeks and that one day earlier he had excruciating right knee pain at work. At that time, according to the history listed in the report, after the claimant stood up from a chair, his knee locked and gave way. Dr. Forde noted that the claimant worked as a security officer in a job that required him to stand and walk all day. Dr. Forde's report also mentions that the claimant had an x-ray done at his job on August 24, 2010, and was told he had a mild beginning of "OA changes." The report history also notes that the claimant admits a history of excessive basketball playing as a teenager. It further states that the claimant denies any injuries, numbness or tingling of lower extremity, but that the claimant saw his primary care physician two weeks ago for knee pain, and that the primary care physician suggested an MRI for worsening and persistent symptoms. Other notations in the report include that the claimant is morbidly obese and ambulating with crutches.
Attached to Dr. Forde's report are the results of an MRI (addressed to Dr. Forde) of the claimant's right knee dated September 2, 2010. The report indicates the following impressions: area of meniscal degeneration within the posterior horn of the lateral meniscus; somewhat flattened and torn body and posterior horn of the medial meniscus; joint effusion; and small contusion within the lateral tibial plateau.
There are no reports from the claimant's primary care physician (as referenced in Dr. Forde's report) in the Board's file.
The only other medical reports in the Board's file are from Dr. Reddy, who began treating the claimant on October 1, 2010. Dr. Reddy recorded a history that the claimant felt a snap in his right knee while walking patrol at work on August 24, 2010. Dr. Reddy checked the box on the C-4 form to indicate his opinion that the injury was due to the work history. Dr. Reddy also recorded that "+ 1 synovitis was noted," and that there was evidence of patellofemoral crepitus in the claimant's knee.
The carrier controverted the claim, and testimony was taken from the claimant and two employer witnesses, the chief of hospital security and a lieutenant with hospital security, who was also the claimant's supervisor.
At the hearing on April 26, 2011, the claimant testified that he worked for the employer as a security officer. His duties included walking patrol and responding to calls. On August 24, 2010, he was on patrol in the psychiatric ward of the hospital when he felt his right knee give out. He sat down by falling into a chair and was unable to stand up. Two nurses witnessed the claimant's accident. The claimant immediately contacted his supervisor (the lieutenant). The claimant's supervisor and other fellow officers assisted the claimant by bringing him to the emergency room (in the hospital where they worked) for medical attention. The claimant testified further that he did not injure his right knee prior to August 24, 2010, and that he did not tell Dr. Forde about a prior right knee injury. The complaints of knee pain that he had for two weeks prior thereto (about which he told Dr. Forde) involved his left knee, not his right knee. He did not have pain in his right knee prior to August 24, 2010, and never told anyone that he injured his knee outside of work. The claimant did not return to work after his accident. In January 2011, the claimant signed a form indicating that he was resigning in lieu of termination.
The chief of hospital security testified at the hearing on April 26, 2011, that he conducted an investigation into the claimant's claim and received a written statement from one of the sergeants in the unit (who has retired), in which the sergeant relayed a conversation that he had with the claimant on August 13, 2010. During that conversation, the claimant stated that he had injured his left knee at home. The chief also read from the claimant's "Absence Monitoring Record" for the year 2010 (CIS Doc. ID # 179946110, filed on 4/27/11) that contained an entry for August 13, 2010, which stated that the claimant went off duty at 17:30 and that he had pains in his left knee before reporting for duty. The chief also testified that he recalled seeing the claimant limping at work and the chief believes that when he asked the claimant how he was hurt, the claimant told him "off the job." The chief also mentioned that there was an occasion sometime in August 2010 where the claimant was carrying crutches. The chief was unaware that there were any witnesses to the incident. The chief indicated that the claimant was terminated because he was on probation, had poor work performance, and poor attendance.
The claimant's supervisor testified by telephone on June 1, 2011, that the claimant never reported any injury prior to August 24, 2010, regarding his leg to him. However, after the claimant's accident, he had a conversation with the now retired sergeant, who mentioned to him that the claimant had previously injured his leg working out while off duty. The supervisor admitted that the sergeant did not tell the supervisor where it happened or how it happened or which leg it involved. The supervisor did not witness the claimant's accident on August 24, 2010, but along with other officers, assisted the claimant by responding to the claimant's call for help and getting him medical assistance after the accident.
In a notice of decision filed on June 6, 2011, the WCLJ established the claim for a work-related right knee injury and found that the carrier had waived the opportunity to cross-examine Dr. Reddy, having failed to take his deposition testimony as previously directed.
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, 1312 ). Although 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 ), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 ).
In Matter of Espino v Louis J. Solomon, Inc., 38 AD3d 1050 (2007), the Appellate Division reversed the Board's decision finding that there was insufficient evidence to disallow a claim where the Board based its decision on conflicting evidence as to when and how the claimant was injured and ignored the uncontroverted evidence that he was injured during the course of his employment (see also Matter of Flannery v Nassau County Police Dept., 26 AD3d 678 ). The court noted that despite "the opportunity to develop a more complete, and thus, more reliable record, neither the Board nor the WCLJ took advantage of available and relevant witness testimony" (Espino at 1051).
The present claim is for a right knee injury. Dr. Forde's indication of a two-week history of right knee pain does not, by itself, warrant a disallowance of the claim. Here, the claimant reported a specific incident involving his right knee giving out while on patrol. The claimant was afforded urgent medical care immediately following the incident. Dr. Reddy opined that the right knee injury is causally related to the claimant's employment. The carrier has not produced medical evidence that contradicts Dr. Reddy's opinion. Moreover, while the SIE relies on the hearsay testimony of its witnesses in support of its contention that claimant injured his right knee prior to his August 24, 2010 work-related accident, the SIE failed to produce any medical evidence of prior treatment of the right leg.
Further, even if there was a prior right knee complaint, it does not preclude a finding of causal relationship as "[i]t is well settled that where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a preexisting infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129  [citations omitted]).
Based upon a review of the record and the preponderance of the evidence, the Full Board finds that the claimant suffered a work-related injury to his right knee on August 24, 2010.
As to the WCL § 114-a issue raised by the SIE, the Full Board finds there is no evidence to indicate that the claimant misrepresented his medical history in order to obtain benefits.
Accordingly, the WCLJ decision filed on June 6, 2011, is AFFIRMED. The case is continued for the resolution of all outstanding issues.