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Case # G0294732
Date of Accident: 03/17/2007
District Office: Peekskill
Employer: D'Agostino Landscaping Inc
Carrier: State Insurance Fund
Carrier ID No.:W204002
Carrier Case No.: 64443302-163
Date of Filing of Decision: 04/04/2013
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on February 26, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on April 23, 2012.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claim is barred by Workers' Compensation Law (WCL) § 18;
  2. whether the claim is barred by WCL § 28, and;
  3. whether there is sufficient evidence to find that the claimant had an accident at work in March 2007.

The Workers' Compensation Law Judge (WCLJ) found that sometime in March 2007, the claimant had a work-related injury to the left shoulder and left knee, directed the claimant to produce evidence of the correct date of accident, and continued the case for consideration of awards.

The Board Panel majority affirmed the WCLJ's decision, concluding that the claim is not barred by WCL § 28 because "the record shows that the employer made an advance payment of compensation in recognition of the employer's liability under the Workers' Compensation Law."

The dissenting Board Panel member would have reversed the WCLJ decision and disallowed the claim finding that the claim is barred pursuant to WCL § 18 and that the claim was also not timely filed as required by WCL § 28.

In their application for Mandatory Full Board Review filed on May 14, 2012, the carrier requests that the Board Panel decision be reversed, and the claim be disallowed. The carrier argues that the claim should be disallowed because there is insufficient evidence in the record that the claimant had a March 2007 accident. The carrier also argues that the claimant failed to provide timely notice pursuant to WCL § 18 and that the employer was prejudiced as the result. The carrier further argues that the WCL § 28 defense was not waived because the employer's payment of a doctor's visit in September 2007 is insufficient to establish its acknowledgment of liability for the claim.

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

FACTS

On September 24, 2010, the claimant filed a C-3 (Employee Claim) to report that he injured his knee while doing landscaping work on September 14, 2007. The claimant alleged that the injury occurred while he was "getting the salt" from the truck parked in the shopping center "because we were cleaning the snow from that place." The claimant alleged that "when [he] was coming down [the driver] moved the truck" which caused the claimant to fall and injure his knee. The claimant reported that he first received treatment for his injury on September 14, 2007, and that he provided oral notice of his injury to the employer on September 16, 2007. The claimant acknowledged that the accident was unwitnessed.

The carrier controverted the claim on several grounds, including accident arising out of and in the course of employment; timely notice to the employer; timely filing of the claim; and causal relationship.

On November 2, 2010, the claimant filed another C-3 form, to report an additional site of injury (the left shoulder) that occurred while the claimant was "unloading bags of salt from the truck" at work on September 14, 2007.

On January 13, 2011, the employer filed a C-2 form and denied that the claimant had an injury at work on September 14, 2007, or that an injury was reported to the employer. The employer further indicated that the claimant continued to be paid after the alleged accident occurred on September 14, 2007, because he kept coming to work and no injury was ever reported.

Medical Evidence

A narrative report of an examination on September 14, 2007, signed by Dr. Semble, indicates that the claimant was brought by an interpreter and reported that "[i]n March, he apparently fell off of a truck taking salt. He fell backwards and developed some pain in the hamstring area. He has managed but over the last few weeks apparently has been complaining to his employer." Dr. Semble noted that an "[e]xamination of the right lower extremity reveals physiologic hip motion and physiologic knee motion. There is no effusion, synovitis, or synovial thickening. There is some tenderness along the hamstrings bilaterally." Dr. Semble diagnosed hamstring tendinitis and mild calf strain. Dr. Semble discussed treatment options but the interpreter indicated that the claimant was functional. Dr. Semble noted that the claimant was not reporting significant pain that would warrant any further testing but that if there is swelling or a worsening of his condition, further evaluation and diagnostic testing would be necessary.

A medical report referencing a left knee injury was received in an associated file, WCB Case #G0179847 (ECF Doc ID #167634564). According to a report from Nyack Hospital signed by Dr. Bak, the claimant was examined on May 25, 2010, and reported that he "injured [his left knee] at the job 2 years ago [but] never had an x-ray." The claimant explained that "his boss takes him to his own doctor not to the ER [and he] does not trust his boss anymore to take care of his injury." The report from the left knee x-ray performed on May 25, 2010, is also in the file and indicates that there is no fracture or dislocation. The claimant was treated with an ace wrap and discharged with instructions to "RICE" the knee and follow up with an orthopedic physician. The diagnosis was knee sprain.

There is no indication that the claimant received any further treatment until October 13, 2010. Dr. Gaughan, the claimant's treating physician, submitted a C-4.0 report of his initial treatment of the claimant on October 13, 2010, and diagnosed a left knee injury that occurred on September 14, 2007. The claimant reported a history of injury that he was at work on September 14, 2007, and fell off a truck and injured his left shoulder, left knee, and left shin.

Testimony

At the hearing held on January 31, 2011, the claimant testified that in 2007, he was employed as a landscaper for the employer landscaping company. While he was removing bags of salt from the back of a truck, the truck moved and he fell, injuring his left shoulder and left knee. The accident happened sometime in March of 2007. The claimant informed his boss of the injury "when [the boss] came back from Italy," where he was vacationing. The claimant did not state specifically on what date he gave the notice. Although the claimant wanted to go to Nyack Hospital after the accident, he was sent to a doctor named Dr. Semble by his boss in September 2007. The employer's secretary took him to Dr. Semble and paid the doctor $250.00 by check. The claimant did not go to any doctors between the alleged injury date in March of 2007 and September of 2007 (when he was sent to the doctor). He did not lose any time from work due to the alleged injury until he was terminated on April 16, 2010, after hurting his finger.

At the hearing held on March 7, 2011, the employer's secretary testified that the claimant was working as a laborer for the company in March of 2007. He did not claim or notify the company that he was involved in any accidents in March of 2007 or September of 2007. She often accompanies employees to doctor's visits (for both work-related and non-work-related injuries) so that she can translate or complete paperwork for the employees. Sometimes the company would gratuitously pay for the doctor's treatments if the employee did not have any money. Although she did accompany the claimant to a doctor's visit in September of 2007, the claimant did not state that the visit was for anything work related.

WCLJ decision

In a reserved decision filed March 29, 2011, the WCLJ established the case for injuries to the left shoulder and left knee. The WCLJ noted the discrepancies in the record regarding the date of the accident but found that the claimant sustained causally related injuries to the left shoulder and left knee, and directed the claimant to produce evidence of the correct date of accident. The WCLJ explained that,

"Although the record is unclear when the accident occurred in March 2007, he continued to work and did not seek any treatment until September 14, 2007. On that day, while at work, he complained of swelling and continuing symptoms to the knee. The secretary for the employer took him to an orthopedist who prescribed some medications. The secretary paid the doctor's bill by check in the sum of $250.00."

LEGAL ANALYSIS

Proper Date of Accident

Initially, it is noted that in order to determine issues related to WCL § 18 and WCL § 28, a date of accident must be determined. In the reserved decision filed on March 29, 2011, the WCLJ did not make a finding of a specific accident date. However, in the decision subsequently filed on April 21, 2011, the WCLJ found that the correct date of accident is March 17, 2007, and the parties have not requested review of this finding.

WCL § 18 Notice

"Workers' Compensation Law § 18 requires that a claimant give his or her employer notice of an injury for which compensation is sought within thirty days after the accident causing the injury. Failure to give the required notice may be excused by the Board based upon a finding that such notice could not, for some reason, be given, or that the employer or an agent thereof had actual knowledge of the accident or death or, finally, that the employer was not prejudiced by the delay. No prejudice will be found to exist where the employer had actual independent knowledge of the event or where the delay neither aggravated the injury nor prevented the employer from properly investigating the claim" (Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784 [2005] [internal citations and quotation marks omitted]). It is the claimant's burden to show that the employer was not prejudiced by the late notice (id.).

Here, the claimant reported on his C-3 form that he provided oral notice of the accident to his employer on September 16, 2007, nearly six months after the accident allegedly occurred on March 17, 2007. During his testimony, the claimant stated that he informed his boss of the injury when the boss came back from his vacation in Italy but he failed to state a specific date or even a month and year that he gave the notice. As such, the record contains insufficient evidence that the claimant provided timely notice of the accident to his employer. Further, the claimant has not alleged that the employer had actual knowledge of the accident, and on his C-3 form, he specifically indicated that no one saw him get injured. Finally, the claimant has not met his burden to prove that the employer was not prejudiced by his six month delay in providing notice of the alleged accident. Specifically, the claimant continued to work after the injury until April 2010, and there is no evidence that he sought any medical treatment related to his left knee until May 2010, or treatment related to his left shoulder until October 2010 (see Matter of Ewool v Franklin Hosp. Med. Ctr., 49 AD3d 1019 [2008]).

Therefore, the Full Board finds that the claim is barred by WCL § 18.

WCL § 28 Timely Claim Filing

"Workers' Compensation Law § 28 bars claims for compensation filed more than two years after the date of the injury" (Matter of Zucker v Port Auth. of N.Y. & N.J., 57 AD3d 1249 [2008]). "An employer waives the limitations defense by making payments of compensation to a claimant in the form of wages, medical treatment or other compensable expenses that carry a recognition or acknowledgment of liability under the Worker's Compensation Law" (Matter of Kwadzogah v New York City Health & Hosp. Corp., 81 AD3d 1213 [2011] [quotation marks and citations omitted]). However, when payments are made without regard to the cause of injury, there can be no finding of advance payment (see Matter of Kaschak v IBM Corp., 256 AD2d 830 [1998]).

Here, the claimant filed his C-3 form on September 24, 2010, more than three years after the March 17, 2007, accident date. As such, the claim was not timely filed as required by WCL § 28. However, the WCLJ found that the employer had waived the defense of WCL § 28 when the employer made an advance payment of compensation by paying for Dr. Semble's examination of the claimant on September 14, 2007.

As noted herein, the narrative report of the examination on September 14, 2007, indicates that Dr. Semble diagnosed hamstring tendinitis and mild calf strain. However, there is no indication in the record that the claimant reported either a left knee injury or a left shoulder injury while the employer's secretary was present as an interpreter during Dr. Semble's examination. Therefore, there was no advance payment of compensation for the injuries for which claimant now seeks benefits.

Therefore, the Full Board finds that the claim is barred WCL § 28.

Sufficiency of Evidence of Accident on March 17, 2007

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]).

Here, the claimant alleged during his testimony that he injured his left knee and left shoulder in an unwitnessed accident at work in March 2007. However, there is no contemporaneous evidence in the record to support his testimony. Specifically, he did not timely notify the employer of the accident. Also, there is no evidence that he sought any medical treatment for his left knee injury until May 2010, one month after the employer terminated his employment, and there is no evidence of any medical treatment for his left shoulder until October 2010, six months after he was fired. As such, the Full Board finds that there is insufficient credible evidence in the record to support a finding that the claimant injured his left knee and left shoulder at work on March 17, 2007.

CONCLUSION

Accordingly, the WCLJ reserved decision filed March 29, 2011, is REVERSED. The claim for left knee and left shoulder injuries is disallowed. Consequently, the WCLJ decisions subsequently filed on April 21, 2011, August 23, 2012, December 13, 2012, and January 30, 2013, are also REVERSED. No further action is planned at this time.