The Full Board, at its meeting held on September 11, 2012, considered the above-captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on November 2, 2011.
The issue presented for Mandatory Full Board Review is whether the claimant sustained injuries arising out of and in the course of her employment.
The Workers' Compensation Law Judge (WCLJ) established the claim for injuries to the right hip and head.
The Board Panel majority affirmed the WCLJ's decision, finding that the claimant testified credibly, and no evidence suggested a non-work-related cause for her fall.
The dissenting Board Panel member found that claimant's fall was caused by a sudden event not related to her employment, and would disallow the claim.
In the carrier's application for Mandatory Full Board Review, it argues that it submitted sufficient evidence to rebut the presumption under Workers' Compensation Law (WCL) § 21.
In rebuttal, the claimant argues that substantial evidence supports the WCLJ and Board Panel majority's establishment of the claim.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a cleaner at a school, suffered injuries to her right hip and head when she fell at work on September 18, 2009. The carrier accepted the claim without prejudice by a Form C-669 (Notice to Chair of Carrier' Action on Claim for Benefits) filed on September 30, 2009.
The carrier filed a Form C-7 (Notice that Right to Compensation is Controverted) on May 24, 2010. The carrier raised defenses of accident arising out of and in the course of employment, accident within the meaning of Workers' Compensation Law, and causal relationship. The carrier asserted that the claimant's injuries were the result of an idiopathic fall.
The claimant filed a Form C-3 (Employee Claim) on July 9, 2010, asserting that she sustained injuries to her right hip and head when she "lost footing" and fell against a door on September 18, 2009.
The claimant was examined by the carrier's orthopedic consultant, Dr. Shulman, on March 24, 2010. The claimant told Dr. Shulman that she was injured when she slipped and fell. Dr. Shulman opined that the claimant suffered from a moderate disability, but did not opine regarding the cause of the claimant's fall.
The carrier's consultant, Dr. Rentschler, a biomechanics engineer, reviewed security camera footage of the claimant's fall. In a report dated February 16, 2010, Dr. Rentschler opined that the kinematics of the claimant's fall were inconsistent with a slip and fall. Dr. Rentschler noted that the claimant was not walking forward at the time of her fall. Dr. Rentschler noted that the claimant's fall could have been due to a loss of balance or tripping over her own feet.
Dr. Them, the carrier's medical consultant, conducted a records review and a review of the video evidence. In a report dated May 7, 2010, Dr. Them noted that the claimant had a history of falls and fractures at home. He also noted that the claimant had an abnormal EKG and chronic hypertension. Dr. Them opined that the claimant's behavior immediately prior to her fall was suggestive of a cerebrovascular event. He concluded that the claimant's fall was most likely due to hypotension, loss of consciousness or a seizure and was not a result of her striking an object or substance on the floor.
The claimant, the employer's superintendent of building and grounds, and two of the claimant's coworkers testified at a hearing on August 6, 2010. The claimant testified that she worked as a cleaner for the employer and part of her duties included opening up the building at 4:30 a.m. The claimant stated that on the morning of September 18, 2009, prior to the arrival of the students, she went into the cafeteria to look for garbage bags and stumbled on something which caused her to fall. The claimant said that she was starting to walk forward and it felt like she slid, but she did not see anything on the floor. The claimant noted that she did not lose consciousness or feel faint or dizzy before falling. The claimant also testified that the floor was waxed, but was not slippery. The claimant stated that she had undergone surgery to remove a brain tumor 30 years ago, but she did not have seizures before or after the surgery. She acknowledged that she takes anti-seizure medication as a precaution. The claimant also acknowledged that she had previously had two claims for work-related injuries to her kneecap and wrist.
The superintendent testified that he did not see the claimant fall, but was called to the cafeteria shortly afterward. He stated that he did not notice whether there was any object or substance on the floor.
The claimant's coworker testified that she was in the cafeteria kitchen when she heard a loud noise and went into the cafeteria to see what had happened. She then went outside to call for an ambulance. The coworker did not see anything slippery or sticky and she did not remember whether the claimant was conscious immediately after the accident.
The claimant's other coworker (second coworker) testified that she found the claimant leaning against the wall between two garbage cans. The claimant called out to her. The claimant had a bump on her head and was in severe pain.
The claimant's treating orthopedic surgeon, Dr. Bennett, testified by deposition on August 18, 2010, that he performed surgery to repair the claimant's hip fracture. The claimant advised Dr. Bennett that her injury was caused by a fall, but did not elaborate on the events surrounding the accident. Dr. Bennett testified that he did not know that the claimant's injury occurred at work until an examination on March 9, 2010.
The claimant's family practitioner, Dr. Jones, testified on September 3, 2010, that he examined the claimant on November 13, 2009. The claimant came to Dr. Jones for the required medical documentation to obtain a handicapped parking permit. Dr. Jones noted that the claimant complained on lightheadedness at an examination on January 11, 2010.
The carrier's consultant, Dr. Them, testified by deposition on August 31, 2010, that he specializes in occupational medicine. He stated that he had reviewed medical records and the security camera video. Dr. Them concluded that the claimant was not ambulating at the time of her accident, and thus, it was not due to a slip and fall. Dr. Them noted that the claimant's gait changed shortly before her fall, and she walked more slowly. Dr. Them observed that the claimant appeared to be having labored breathing and showed a sudden loss of posture. Dr. Them also noted that the claimant did not move her right arm when she fell, and did not appear to attempt to break her fall. He opined that the claimant's fall was due to a seizure, stroke or transient ischemic attack. Upon cross-examination, Dr. Them admitted that the medical records did not indicate that the claimant had seizures or fainting spells.
The carrier's orthopedic consultant, Dr. Schulman, testified by deposition on September 7, 2010, that the claimant reported that she injured her hip when she fell at work. Dr. Schulman stated that he relied on the claimant's report regarding the events surrounding her accident and did not view the video evidence.
The carrier's biomechanical expert, Dr. Rentschler, testified that he has a PhD in bioengineering. He noted that the claimant was not walking forward at the time of her fall. Dr. Rentschler stated that the fact that the claimant did not attempt to break her fall indicates that she had a loss of consciousness. He testified that if the claimant had slipped, the video would have showed a motion of the legs. He noted that merely pivoting is usually not sufficient for someone to slip and fall.
In a reserved decision filed September 30, 2010, the WCLJ found that insufficient evidence supported a finding that the claimant's fall was due to a cause related to her work. The WCLJ established the claim for injuries to the head and right hip and set the claimant's average weekly wage at $620.24. The WCLJ also resolved the outstanding C-8.1s in favor of the provider.
"'[T]o be compensable under the Workers' Compensation Law, [an accidental injury] must have arisen both out of and in the course of employment' (Matter of Thompson v New York Tel. Co., 114 AD2d 639 ; see Workers' Compensation Law § 10)…Accidents arising 'in the course of' employment are presumed to arise 'out of' such employment, and this presumption can only be rebutted by substantial evidence to the contrary (see Workers' Compensation Law § 21; Matter of Van Horn v Red Hook Cent. School, 75 AD2d 669 )" (Matter of Keevins v Farmingdale UFSD, 304 AD2d 1013 ).
In the present case, the fact that the claimant was in the course of her employment at the time of her fall is not in dispute. The carrier argues that the claimant suffered an idiopathic fall that did not arise out of her employment. The carrier's consultants, Dr. Them and Dr. Rentschler, opined that the claimant suffered a loss of consciousness due to a seizure, stroke, or ischemic attack, based on a review of the video of claimant's fall. However, no medical evidence in the record indicates that claimant suffered from a seizure, stroke or ischemic attack, or that the claimant ever lost consciousness. The video footage upon which Dr. Them and Dr. Rentschler based their analyses shows the claimant, at some distance away, stumbling backwards and falling.
While the exact cause of the claimant's fall is unknown, WCL § 21(1) affords the claimant the presumption that unexplained accidents that occurred in the course of employment also arose out of that employment. The carrier's consultant's opinions that the claimant's fall was due to a loss of consciousness, without any other supporting medical evidence or testimony, are insufficient to rebut the presumption.
Therefore, the preponderance of the evidence in the record supports a finding that claimant's injuries arose out of and in the course of her employment.
ACCORDINGLY, the WCLJ decision filed on September 30, 2010 is AFFIRMED. No further action is planned by the Board at this time.