Case # G0188667
Date of Accident: 09/02/2009
District Office: NYC
Employer: Ernesto Diaz
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63725444-374
Date of Filing of Decision: 10/15/2012
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Robert E. Beloten

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 July 28, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant suffered an accident arising out of and in the course of his employment.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority reversed the WCLJ's decision and established the claim, finding "that the claimant suffered an accident arising out of and in the course of his employment [because his] testimony that he injured himself in a fall in the basement on September 2nd was corroborated in all material respects by employer witnesses found by the WCLJ to be credible, and all medical evidence of record."

The dissenting Board Panel member would have affirmed the WCLJ's decision to disallow the claim, "[b]ased upon the lack of contemporaneous medical evidence coupled with the WCLJ's determination that the claimant's testimony was not credible, and based upon the considerable discrepancies between the claimant's testimony and the testimonial and documentary evidence of record …"

The carrier filed an application for Mandatory Full Board Review on August 19, 2011.

The claimant filed a rebuttal on September 16, 2011.

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

FACTS

On September 11, 2009, the employer filed a C-2 to report that the claimant was injured at work on September 2, 2009, at 3:00 p.m. According to the C-2, the claimant orally reported the injury on September 2, 2009, stating that he has pain on the right side of his arm and leg. At the time of the injury, the claimant had been "assisting in the cleaning of the floors [and] he slipped on the wet floor after pushing the mop-truck." Attached to the C-2 is a note from the Emergency Department of North Shore Long Island Jewish Hospital certifying that claimant was treated at the hospital on September 2, 2009, and excusing claimant from work for three days. However, the treatment records for claimant's September 2, 2009, emergency room visit are not in the record.

On September 21, 2009, the claimant filed a C-3 to report that he injured his right shoulder, low back and right knee on September 2, 2009, while working as a custodian cleaner. The claimant alleged that he was injured when he "was pushing a computer cart on a wet floor [and] he slipped on the wet floor."

Another C-3 form was received by the Board on October 9, 2009, in which the claimant reported injuries to the head, back, neck, right knee, right shoulder, right hip, and left knee, as a result of the accident at work on September 2, 2009.

On October 9, 2009, Dr. Moosazadeh, the claimant's treating physician, submitted three C-4.0 reports of an examination on September 10, 2009, billing for different procedure codes on each of the forms. None of these reports contained an opinion regarding the degree of the claimant's disability. However, on October 16, 2009, the Board received three more C-4.0 reports of Dr. Moosazadeh's examination on September 10, 2009, billing for the same procedure codes that were listed on the prior reports, and providing some additional information, including an opinion of the degree of the claimant's disability (ECF Doc ID #s 158305799; 158305800; and 158305801). Each of the forms notes that the claimant reported that he "slipped and fell on the wet floor sustaining multiple injuries while working on [September 2, 2009]" and provides Dr. Moosazadeh's opinion that the incident described by the claimant is the cause of the injury. In each of the forms, Dr. Moosazadeh also opined that the claimant had a 100% temporary impairment, and that he is unable to return to work because he is totally disabled. The three forms reflect that Dr. Moosazadeh diagnosed the following conditions during the examination: disorders of bursae and tendons in the shoulder, degeneration of cervical intervertebral disc, unspecified musculoskeletal disorders and symptoms of the neck, knee sprain, lumbago, and pain in joint involving pelvic region and thigh. In addition to reporting a procedure code for his examination, Dr. Moosazadeh reported procedure codes for x-rays of the shoulder, neck, low back, hip, and knee.

Dr. Miller, the carrier's orthopedic consultant, submitted an IME-4 report of an examination on December 23, 2009, and noted a history of having been injured when he slipped and fell at work on September 2, 2009. Dr. Miller diagnosed right shoulder sprain/strain, resolving; right hip contusion, resolved; and right knee contusion, resolving. Dr. Miller opined that "there is a causal relationship between the accident of record and the claimant's reported symptomatology."

The claimant testified through an Arabic interpreter that he worked as a cleaner for the employer for approximately eight years. On September 2, 2009, he slipped and fell as he was pushing a computer on a cart on a wet floor. Claimant stated that his whole body dropped on the floor. This occurred at approximately 3:00 p.m. His normal working hours were 4:00 p.m. to 10:00 p.m., but he was called in two hours early on the date of the accident because someone did not show up for work that day. He testified that he injured his right shoulder, neck and right knee. Asked who was around him when he fell, claimant identified two co-workers. Claimant testified that he did not know if the co-workers were looking at him when he fell, but he stated they were "near by", and "within a minute" they came over to him to help him up. An ambulance was called and the claimant was transported to North Shore Long Island Jewish Hospital. The claimant stated that prior to the accident, he had an argument with another employee. At a meeting with the union representative that occurred at 10:00 a.m. or 11:00 a.m. on September 2, 2009, the claimant signed a stipulation. After that meeting, claimant testified he went home and then returned to work at approximately 3:00 or 3:30 p.m.

The employer's custodian engineer testified that on September 2, 2009, claimant's work hours were 8:00 a.m. to 5:00 p.m., and that claimant did not come into work two hours early on that date. He testified that the claimant had a union grievance hearing on September 2, 2009. The grievance meeting was over at about 11:00 a.m. The grievance was resolved by stipulation of agreement that claimant would serve a 20-day suspension and attend anger management courses. After the grievance, the claimant punched back in to work at 12:01 p.m. according to a time card produced by the custodian engineer.

A copy of the stipulation agreement is in the Board file (ECF Doc ID #164104883, p. 1). The stipulation agreement confirms that the claimant was suspended without pay effective from September 4, 2009, until October 2, 2009. The agreement further states that the claimant "will enter a certified anger management program" and provide proof of his completion of the program to the employer. The agreement also states that the claimant "will return to his normal hours of work (4pm - 10pm) after suspension."

The claimant's timecard from September 2, 2009, is also in the record (ECF Doc ID #164104883, p. 2). The timecard shows that the claimant punched in at 7:42 a.m., punched out at 8:31 a.m., and then punched back in at 12:01 p.m. There is also a handwritten entry for out at "4pm Grievance."

The employer called a co-worker of the claimant (who is also the union representative) as a witness. The union representative testified that he was working in the basement of the school with the claimant on September 2, 2009. Claimant was on one side of a partition that divided the room, and the union representative was on the other side. The union representative testified to hearing a "boom" that sounded like furniture falling from the other side of the divider, and he went with other employees to see what happened. He stated that claimant "was there on the floor. He went down."

Another co-worker of the claimant was also called by the employer to testify via a Spanish interpreter. The co-worker testified that the basement was divided into two parts by a wooden divider. He stated that he and the union representative were working on one side, and claimant was on the other at the time claimant fell. The co-worker testified to hearing a boom, like something was crashing into the basement divider. When the witness went around the divider hefound claimant on the floor, moaning. The co-worker testified that the union representative immediately notified the custodian engineer. The witness believed that the custodian engineer called an ambulance. The witness agreed that carts were used to transport equipment in the basement, but he did not remember seeing a computer cart near where claimant fell. The incident occurred at about 2:00 or 3:00 in the afternoon.

Following the employer witness testimony and summations by the parties, the WCLJ stated, "I find the testimony of the claimant not credible and that it contained numerous discrepancies, while I find the testimony of the employer's witnesses credible; therefore, this claim is disallowed."

The WCLJ's findings were set forth in the decision filed on March 31, 2010, and the claimant requested administrative review of that decision.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the carrier requests that the Full Board adopt the dissenting opinion and disallow the claim. The carrier argues that the WCLJ acted "within her discretion to credit the lay testimony over that of the claimant[ ]" for the reasons given in the dissenting opinion. The carrier further argues that "it is clear that the carrier offered sufficient evidence to rebut the [WCL §] 21 presumptions in favor of the claimant for unwitnessed accidents, including the lack of contemporaneous medical, the accounts of the lay witnesses who denied witnessing the accident, and the fact that the claimant's disciplinary hearing was held on the same date as the alleged accident."

The claimant has filed a rebuttal to the carrier's application for Mandatory Full Board Review, and requests that the majority decision be affirmed in its entirety. The claimant argues that he provided credible testimony that he sustained work-related injuries to his right shoulder, right knee, and neck. The claimant further notes that during the testimony of the lay witnesses, they verified the claimant's job duties and confirmed that the claimant had sustained an accident.

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 [2009] [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 [2003]). 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 [1964], lv denied 15 NY2d 486 [1965]).

Although the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]), 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 [2003]).

Here, the claimant alleged that he sustained multiple injuries when he fell on a wet floor on September 2, 2009, while working for the employer as a custodian. He testified that his co-workers were working near him when he fell and quickly came over to him to help him up. The co-workers both testified and corroborated the claimant's testimony in this regard. It is also undisputed that an ambulance was called and that the claimant was taken to the hospital for treatment and that claimant was treated at the Emergency Department of North Shore Long Island Jewish Hospital. However, neither the ambulance records nor the emergency room treatment records are in the Board's file.

Therefore, the Full Board finds that claimant should be directed to submit into evidence the September 2, 2009, ambulance records and emergency room treatment records, and that the matter should be remitted to the WCLJ for a decision based on a complete record which includes the above referenced records.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on March 31, 2010, is RESCINDED and this matter returned to the trial calendar as directed above.