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Case # G0365046
Date of Accident: 03/25/2011
District Office: Buffalo
Employer: Erie County Social Services
Carrier: Erie, County of
Carrier ID No.: W818009
Carrier Case No.: 6001-11082
Date of Filing of Decision: 06/28/2013
Claimant's Attorney: Kathryn M. Kirsch, Esq.
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on May 31, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant sustained an accidental injury in the course of his employment

In a decision filed on October 11, 2011, the Workers' Compensation Law Judge (WCLJ) established the claim for a work-related injury to the claimant's low back.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member found there is insufficient credible evidence in the record to establish the claim for a work-related injury.

On June 27, 2012, the self-insured employer (SIE) filed a request for Mandatory Full Board Review, arguing that the claim should be disallowed due to the unreliable and self-serving nature of the claimant's testimony, the lack of contemporaneous evidence of an accident, and the fact that the claimant's co-workers and supervisor testified to not having witnessed an accident, or noticed a difference in the claimant's condition.

On July 23, 2012, the claimant filed a rebuttal asserting that the SIE has failed to produce sufficient evidence to rebut the presumption afforded under Workers' Compensation Law (WCL) § 21(1).

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

FACTS

The claimant, then a 62 year-old Medicaid examiner trainee, filed a form C-3 (Employee Claim) on April 25, 2011, indicating that on March 25, 2011, he injured his back when he bent down from a sitting position to pick up a piece of paper.

On June 2, 2011, the self-insured employer (SIE) filed a form C-7 (Notice that Right to Compensation is Controverted), controverting the claim and raising issues of compensability including that the claimant did not sustain an accidental injury in the course of employment, that claimant's injury was not causally related to his employment, and that there was no prima facie medical evidence.

At the hearing on August 4, 2011, the claimant testified that he began working as a social services examiner trainee on September 29, 2010. On March 25, 2011, while he was seated at his desk, a piece of paper dropped to the floor. He pushed his chair back to pick up the paper. His chair would not go too far back because something was behind it. When he attempted to pick up the piece of paper, he felt extreme pain in his low back, causing him not to be able to stand up straight or walk properly. He had been experiencing fairly sharp pain in his back on and off since the fall of 2010, causing him problems standing and walking. After the March 25, 2011, accident, he experienced increased pain in his back that radiated into his left leg. The last time he had seen a doctor for his back prior to March 25, 2011, was in 2006, when Dr. Kaplan gave him an injection. He has seen a chiropractor for his back in the past. He was not on any medication for his back on March 25, 2011. He reported the work accident to his supervisor during the first week in April 2011. Claimant did not discuss his back problems at work but believed that his co-workers knew that something was wrong with him based on the fact that he limped, hobbled, and had trouble standing and walking. The claimant worked in an open area. He does not specifically remember telling any of his co-workers that he injured his back on March 25, 2011, but he discussed his back problems in general with a few co-workers with whom he was social.

On cross-examination, the claimant testified that his back problems began in late 1970/early 1980, when he injured his back while working at Nabisco. He does not know whether he was classified as permanently partially disabled, but he received workers' compensation benefits. He received treatment for back pain in 2005 and 2006, which was precipitated by an accident that he had home while bending down to pick something up. He had an MRI of his low back in 2005 at Buffalo Spine and Sports. He returned there after his March 25, 2011, accident. The claimant testified that he worked up until April 6, 2011. At the time of the accident, the claimant was still in the probationary period of his employment. He had been employed with the county two years, but held different positions prior to becoming a social services examiner trainee. On April 8, 2011, the claimant was told he was not going to be made permanent. The claimant had not reported his work accident up until that point. He spoke to his supervisor about the accident after he was terminated. The claimant filled out a work accident report in which he indicated that everyone in the office was aware that he had a suffered a work injury on March 25, 2011. When questioned about this statement, claimant explained that while no one may have known his problems initiated on March 25, 2011, it could be observed that he was walking with more difficulty and pain after March 25, 2011, and started using a cane during the week of April 4, 2011. The claimant completed the work accident report on April 13, 2011. On March 29, 2011, the clamant received a letter from the SIE indicating that based on an unsatisfactory probation period, the claimant would be terminated effective April 15, 2011. The claimant was told that he could work for social services for another week and could then return to his job in the youth detention department.

The claimant's supervisor testified at the hearing on August 4, 2011, that she was the claimant's direct supervisor during the time he worked at social services. At no point during the claimant's employment did he report an injury at work. She saw claimant limping some time before Christmas (2010) and asked him what was wrong. The claimant told her his back was bothering him. The claimant's last day worked was April 7, 2011. On April 8, 2011, the claimant called into work sick. The supervisor told him that he would need to come in for a termination meeting. At the termination meeting on April 8, 2011, the claimant mentioned that his back hurt and that is the reason he was out. He did not mention an accident at work at the meeting. On April 12, 2011, the claimant called the supervisor to request an incident report. The incident report was provided to the claimant. He faxed a completed report back to the supervisor on April 13, 2011. The supervisor investigated the claim of accident made by the claimant by asking staff whether anyone was aware that claimant had been injured at work. None of the staff members recalled the claimant injuring himself at work. One of the staff members indicated that he was aware that the claimant had some prior back problems.

Eight of the claimant's co-workers testified at the hearing on August 4, 2011. Their testimonies were very similar insofar as no one was aware of any back injury incurred by the claimant at work. Each one of the witnesses noticed that the claimant walked hunched over as if he was in discomfort, but none of them could pinpoint the dates when this was observed. One of the witnesses said that claimant looked uncomfortable all the time. Another witness testified that the claimant had back problems from the time he starting working there because she had asked him whether he injured his back and he told her that he had a past injury. One of the witnesses indicated that in January 2011, the claimant told him he had a back ailment but did not reveal any cause. Two of the witnesses observed the claimant using a cane. One of the witnesses stated that she observed the claimant using a cane in 2011, but could not remember any specific dates.

The claimant had two prior work-related back injuries: WCB Case #88218011 for a November 8, 1982, work accident and WCB Case #88518363 for an October 14, 1985, work accident. The case information indicates that both cases involved injuries to the claimant's back. Both claims are archived.

The first medical evidence in the record is an EC4-NARR April 11, 2011, report by Dr. Geraci of the Buffalo Spine and Sports Institute. In that report Dr. Geraci indicates that the claimant presented with left low back and groin pain with a dull ache in the left lateral thigh and posterior thigh to the posterior and lateral calf for the past two weeks. In the "duration/onset" portion of the report, it indicates that symptoms began weeks ago and it happened "SITTING IN A CHAIR." The report further indicates "Injury happened at other [Note: discuss with patient" and "Filing a claim? unsure." The assessments indicated the status of existing problems as: Low Back Pain, Acute as new; Disc Disease, Lumbar as new; Symptom of Herniated Lumbar Disc as new; and the new problems as Lumbar Radiculitis, left L5 of S1; Herniated Lumbar Disc; Spondylosis, Lumbar; Disc Disease, Lumbar and Low back Pain, Acute." Dr. Geraci indicates in his EC4-NARR that claimant's injuries are causally related to the incident described in his report.

Dr. Geraci testified by deposition on August 15, 2011, that he first examined the claimant in connection with the March 2011 accident on April 11, 2011. At that visit, the claimant stated that he was having lower back pain which radiated into his leg for two weeks prior, and that he was not sure whether he would be filing a workers' compensation claim or not. The claimant further stated that the injury occurred when, while sitting in a chair, he bent over to pick something up from the floor and felt sharp pain in his lower back and hip which radiated down his left leg. Upon examining claimant at this initial visit, claimant exhibited symptoms of disc herniation, lumbar spondylosis, lumbar degenerative disc disease, and low back pain, and possible radiculitis L5, S1 on the left. Dr. Geraci testified that an MRI of the claimant's lumbar spine conducted on April 27, 2011, indicated that there was a disc herniation that was present at L3, 4 to the left paracentral, placing pressure on the left L4 nerve. When asked whether he had an opinion on what caused claimant's symptoms, Dr. Geraci responded, "Well, at that time he wasn't really under workers' compensation, so it could be due to sitting and bending forward, but one incident usually is not enough to produce a new disc herniation" (Deposition, Dr. Geraci, 8/15/11, p. 6). On cross-examination, Dr. Geraci testified that at the initial visit on April 11, 2011, the claimant was unsure about whether he would be filing a claim for worker's compensation. The claimant called the doctor's office on April 14, 2011, to advise that his injury was work-related. The doctor reviewed the claimant's MRI from 2005 which indicated a herniation and noted that the recent MRI showed the same herniation, but smaller. The doctor opined that bending over at work would not have caused a new herniation. However, if the claimant was having prior symptoms, bending forward from a seated position could have aggravated, but not caused, the disc herniation.

In an IME report dated July 19, 2011, the SIE's consultant, Dr. Ring, diagnosed the claimant with a low back strain causally related to the injury of March 25, 2011, superimposed on preexisting problems with the low back since at least the year 1982 and perhaps earlier. Specifically, Dr. Ring characterized the claimant's condition as a "mild aggravation of pre-existing problems," which he apportioned as 80% preexisting, and 20% due to the March 25, 2011, accident.

In a reserved decision filed on October 11, 2011, the WCLJ established the claim for a work-related injury to the claimant's low back.

LEGAL ANALYSIS

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 [2009]). 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 [2003]), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 [1991]).

Here, the WCLJ who was present during the testimony of claimant and the employer's lay witnesses, and able to observe their demeanor, found that claimant credibly testified that he sustained an accidental injury at work on March 25, 2011. The claimant sought medical care within two weeks of the incident and the accident history he reported to Dr. Geraci is consistent with the description of the incident in claimant's C-3.

Further, although claimant had sustained prior injuries to his back, "[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 [1994] [citations omitted]). Both Dr. Geraci and Dr. Ring both found that the claimant's March 25, 2011, accident aggravated his pre-existing injuries.

Therefore, the Full Board finds that based upon a preponderance of the credible evidence in the record, the claimant suffered an accident arising out of his employment on March 25, 2011.

CONCLUSION

Accordingly, the WCLJ reserved decision filed on October 11, 2011, is AFFIRMED. No further action is planned by the Board at this time.