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Case # G0397501
Date of Accident: 06/09/2011
District Office: Albany
Employer: Tots N Us Inc
Carrier: Hartford Fire Insurance Co
Carrier ID No.: W106504
Carrier Case No.: YZC70367C
Date of Filing of Decision: 04/04/2013
Claimant's Attorney: Dennis Kenny Attorney at Law
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 March 26, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant sustained a compensable right ankle injury on June 9, 2011.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding that the claimant was not credible, and that the record supports the carrier's assertion that the claimant was not injured at work on June 9, 2011, but instead was hurt while off the job sometime over the weekend.

The Board Panel majority found that the claimant was not credible, that the employer witness was credible regarding the lack of reporting or logging by the claimant, and that the claimant did not sustain a compensable right ankle injury on June 9, 2011, arising out of and in the course of her employment.

The dissenting Board Panel member would have found that the claimant credibly testified, and that the record needs further development with the testimony of the teacher's assistant and the teacher that the claimant worked with, and the emergency room records, prior to a determination as to whether the claimant suffered an injury in the course of her employment.

In her application for Mandatory Full Board Review, filed with the Board on April 23, 2012, the claimant contends that the claim should be established.

In its rebuttal filed with the Board on May 3, 2012, the carrier requests that the memorandum of decision be affirmed in its entirety, as there were serious credibility issues with the claimant's testimony.

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

FACTS

The carrier submitted a C-2.0 (Employer's Report of Work-Related Injury/Illness), indicating that the claimant, a teacher's assistant, alleges that on June 9, 2011, she fractured her right foot when she tripped while walking outside with two children.

In the Board file is also a Form C-2.0 filled out by the employer which indicates that notice was orally given to the claimant's supervisor on June 13, 2011.

The carrier submitted a Form C-7.0 (Notice that Right to Compensation is Controverted), controverting the claimant on multiple grounds.

The claimant submitted a Form C-3.0 (Employee Claim), indicating that she was employed as a teacher's assistant, and alleging that on June 9, 2011, she injured her right foot when she tripped in a ditch while walking with two children. The claimant indicated that the only witnesses to the accident were the two children, who were three year old children, and that she orally provided notice to her supervisor on June 13, 2011. The claimant also indicated she first treated for her injury on June 12, 2011, at Vassar Hospital.

The medical records in the Board file indicate that the claimant first treated for her ankle injury on June 12, 2011. The carrier unsuccessfully attempted to obtain the full emergency room records from June 12, 2011. The record does contain a single page document from Vassar Hospital indicating that claimant was treated on June 12, 2011, and was diagnosed with a fractured foot.

In a medical report dated June 28, 2011, the claimant provided a history that she sustained an injury on June 9, 2011, when she stepped in a pothole sustaining a twisting injury to her right foot. The claimant was ultimately diagnosed with a right ankle sprain and a navicular avulsion fracture.

The claimant testified that on June 9, 2011, she was working for the employer, a daycare, as a teacher's assistant. She fractured and sprained her right ankle when she stepped in a ditch while walking with the kids in her care. The accident occurred around 11:00 in the morning. The claimant and the other assistant she was working with had decided to take the kids for a walk. The other assistant was in the front of the line and the claimant was at the end. After she fell, she caught up to the other assistant and told her what happened, and they went inside. She also told the teacher that she was assisting, what had happened. The accident occurred on a Thursday. After the accident, she was able to finish her workday on Thursday. She was also able to work the entire day on Friday. She first sought medical treatment on Sunday after she had woken up during the night in pain. She did not have any other accidents between Thursday when she fell and Sunday when she went to the emergency room. She last treated for her injury on July 8, 2011. As part of her job she kept a daily log of what happened during the day. She would make a note in the log of any unusual events, such as an accident or problem with a child. She clarified that only accidents involving children are noted in the log book.

The employer's owner/president testified that on Monday, June 13, 2011, she first became aware that the claimant was filing a workers' compensation claim regarding her alleged accident. The claimant had come to work that day with a doctor's note and told her that she hurt her leg the preceding Thursday. Before the claimant came to work on Monday, the claimant had called the employer's director and advised her of her injury. After the claimant spoke with the director, the director told the witness. Thereafter, the witness spoke with the employer's closing director and asked her if she knew anything about what had happened to the claimant. The closing director did not know anything about what had happened. The closing director advised that the claimant had worked all day on Friday, performing her normal duties. The witness also asked the teacher the claimant was working with, who did not know anything about the claimant's accident. The claimant never mentioned an accident that occurred on Thursday. The claimant did not place a notation in her log book regarding the accident. When an injury occurs, either to a child or an employee, the employee is supposed to make a notation in his/her log book. The claimant's log book indicated that there were no problems or accidents to report on Thursday, June 9, 2011, or Friday, June 10, 2011. On July 26, 2011, the claimant made an entry in her log book indicating that she had been stung by a bee on her left arm. The employer has a policy that all accidents are to be reported, whether the accident was sustained by one of the children or an employee.

The employer's owner/president testified that on Monday, June 13, 2011, when she had discussed the accident with the claimant, she advised the claimant that she did not tell anyone she was hurt, and that nobody knew that she hurt her foot. She advised the claimant that the closing director said that the claimant was not limping when she saw her leave on Friday. She asked the claimant if when she left work on Friday, she was fine and if she was not hurt and the claimant responded yes. She advised the claimant that she needed to tell the truth and the claimant indicated that she was going to.

The employer's closing director testified on September 26, 2011, that she first learned about claimant's alleged injury on Monday, June 13, 2011. Employees are supposed to directly report employee injuries to her, so that she can log them. Although, the claimant claims that on the day she sustained her injury, she had reported the incident to the teacher she was working with, the teacher never reported the incident to the witness. If the teacher was made aware of an employee injury, she would log it into her log book and then report it to the witness in the afternoon. If the incident happens in the morning, then it gets reported to whoever is at the desk. The closing director testified that she saw the claimant working on June 9th and 10th. The claimant never indicated that she was injured. The witness does not recall ever observing that the claimant had a limp or any problem with her leg either of those days.

The claimant's log book entries from June 8-10, 2011, were submitted into evidence. The entries for both June 9 & 10 indicate that there were no problems/accidents to report.

At the conclusion of testimony, the carrier requested that based on the claimant's testimony, the record be further developed with the testimony of the teacher the claimant works with. The claimant objected, contending that since an investigation was performed by the employer, the teacher could have been contacted prior to the day of the hearing and produced as a witness. The WCLJ denied the carrier's request.

By Reserved Decision filed on November 25, 2011, the WCLJ found that the claimant was not credible, and that the record supports the carrier's assertion that the claimant was not injured at work on June 9, 2011, but instead was hurt while off the job sometime over the weekend. The WCLJ disallowed the claim and marked the case no further action.

LEGAL ANALYSIS

To be compensable under the Workers' Compensation Law (WCL), an injury must both occur in the course of the employment and arise out of the employment (Matter of Mattaldi v Beth Israel Med. Ctr., 29 AD3d 1192 [2006]).

WCL § 21(1) creates a presumption, absent substantial evidence to the contrary, that an accident which occurs in the course of employment is presumed to arise out of employment and, as such, is compensable (Matter of McFarland v Lindy's Taxi, Inc., 49 AD3d 1111 [2008]). The presumption of compensability, however, is a limited presumption that does not relieve the claimant of her burden of demonstrating that the injuries allegedly sustained arose out of and in the course of her employment (Matter of Lewis v NYS Dept. of Mental Retardation & Developmental Disabilities, 257 AD2d 813 [1999]); nor can the presumption be used as a substitute for actual proof that an injury arose out of and in the course of employment (Matter of Wilson v General Motors Corporation, 298 NY 468 [1949].

The Board is the sole arbiter of witness credibility (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252 [2009]). As long as credibility determinations are supported by substantial evidence, the fact that some contradictory evidence was also introduced does not change the result (Matter of Scollo v Joseph J. Pietrafesa Co., Inc., 105 AD2d 515 [1984]).

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]).

In the instant case, the claimant is alleging that around 11:00 in the morning on Thursday, June 9, 2011, she injured her right ankle when she stepped in a ditch while walking children in her care. She testified that she was able to work her regular duties the rest of the day on Thursday, and the entire day on Friday. The claimant testified that she first sought medical treatment very early Sunday morning (June 12, 2011) after she had woken up during the night in pain. Although, the claimant's Form C-3.0 and the employer's Form C-2.0 both indicate that the employer was first notified of the claimant's injury on Monday, June 13, 2011, the claimant testified that she had informed the other teacher's aide she was working with and the head teacher on the day of the accident. The employer's owner/president and closing director both indicated that they first learned about the alleged incident on Monday, June 13, 2011. The owner/president testified that when she first learned of the claimant's injury, she asked the teacher who the claimant worked with if she knew anything about it. The teacher indicated that she did not know anything about the claimant's accident. The owner/president testified that after telling the claimant that the closing director advised her that the claimant was not limping when she saw her leave on Friday, she asked the claimant if when she left work on Friday, if she was fine [and not hurt] and the claimant responded yes. The owner/president further testified that she advised the claimant that she needed to tell the truth and the claimant indicated that she was going to. The claimant's log from June 9, 2011, and June 10, 2011, both indicated that there were no accidents or problems to report. Although the claimant testified that the log was only used for issues concerning the children, both of the employer witnesses credibly testified that the log book was used to log any issues with either children or employees. Also, the claimant had logged a subsequent incident in her log book when she had been stung by a bee.

The claimant contends that she fractured her ankle and partially tore her ankle tendon on Thursday morning, worked the rest of the day on Thursday, worked the entire day on Friday, and waited to seek treatment until early Sunday morning. However, the employer's owner/president credibly testified that after advising the claimant that the closing director saw the claimant leave on Friday without limping or any problems, the claimant admitted to the owner/president that she was fine (and not injured) when she left work on Friday. Also, despite the credible testimony of the employer witnesses that the log book was to log any incidents with either children or employees, and that the claimant subsequently noted in the log book when she was stung by a bee, the claimant indicated in her log book that there were no problems or accidents on both Thursday, June 9, 2011, and Friday, June 10, 2011.

Based on the preceding, the Full Board finds the record supports the finding of the WCLJ, who heard the testimony of the witnesses, that the claimant was not credible, that the claimant did not sustain a compensable right ankle injury on June 9, 2011, and that the claim should be disallowed.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on November 25, 2011, is AFFIRMED in its entirety. No further action is planned by the Board at this time.