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Case # G0365048
Date of Accident: 02/25/2011
District Office: Buffalo
Employer: Nursefinders, Inc
Carrier: Travelers Indemnity Company
Carrier ID No.: W212252
Carrier Case No.: 002-CB-A4E7826
Date of Filing of Decision: 03/07/2013
Claimant's Attorney: Losi & Gangi
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on January 15, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 1, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant suffered a work-related injury to her left knee on February 25, 2011.

In a reserved decision filed on October 7, 2011, the Workers' Compensation Law Judge (WCLJ) established this case for a work-related left knee injury and continued the case to consider awards and the claimant's average weekly wage.

The Board Panel majority affirmed. The dissenting Board Panel member would reverse the WCLJ and disallow the claim

The carrier filed an application for Mandatory Full Board Review on April 2, 2012. The claimant filed a rebuttal on May 2, 2012.

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

FACTS

The claimant, a registered nurse, filed a C-3 (Employee Claim) on May 10, 2011, alleging that she was injured when she bumped her left knee on a machine located at the edge of the bed while caring for a patient on February 25, 2011. The C-3 indicated that claimant had been "working full-time per diem hours," and that she had not worked since February 25, 2011. The carrier controverted the claim.

Claimant first sought treatment on March 21, 2011, at the emergency room of Eastern Niagara Hospital. The emergency room report indicated the claimant complained of a sprained left knee and that she had a history or recurrent knee dislocation. The records did not provide a history of the claimant's left knee injury. The claimant underwent an MRI of her left knee which revealed a large tear at the body and the anterior horn of the lateral meniscus and a large effusion.

Later that same day (March 21, 2011), claimant sought treatment at the emergency room of Millard Fillmore Suburban Hospital (Suburban). The report of that treatment states that claimant reported that "yesterday, she went to the Buffalo St. Patrick's Day Parade. She states she does a lot of walking and then she was helping a friend push their car after they ran out of gas. She states that she did not seem to have any direct injury to her knee, but later last night she began to develop pain in her left knee…" The claimant stated that although she had been to a different emergency room earlier on March 21, 2011, she went to Suburban's emergency room because her pain was uncontrolled. The claimant did not provide a history of a February 25, 2011, work accident. Following an examination, the claimant was discharged and referred to an orthopedist.

The claimant saw Dr. Schlehr on April 11, 2011. In connection with this examination, Dr. Schlehr filed a C-4 (Doctor's Initial Report) and narrative report stating the claimant's left knee injury is related to her February 25, 2011, work accident, when the claimant banged her left knee against a pump at the end of a patient's bed. At the end of the report, Dr. Schlehr recommended the claimant undergo arthroscopic meniscectomy, debridement, and repair as necessary.

The carrier had the claimant examined by its consulting orthopedist, Dr. Faulk, on May 23, 2011. Dr. Faulk received a history that the claimant, while at work on February 25, 2011, struck her left knee on a pneumatic pump at the base of a patient's bed. The claimant further advised that on March 21, 2011, she was walking at a parade and started noticing she was having difficulty bearing weight on her left lower extremity. The claimant advised Dr. Faulk of her two emergency room visits of March 21, 2011, and the results of the MRI scan. Following a review of the claimant's medical records and a physical examination, Dr. Faulk concluded that while the claimant likely suffered a left knee contusion on February 25, 2011, her disability and need for left knee surgery are not related to the February 25, 2011, injury; but rather, the need for additional treatment related to the claimant's pre-existing left knee arthritis.

At the initial hearing held on June 20, 2011, the WCLJ found Dr. Schlehr's medical report constituted sufficient medical evidence to proceed with this case and continued the case to July 21, 2011, for lay witness testimony. In addition, the WCLJ directed the carrier produce the deposition transcripts of Drs. Schlehr and Faulk.

On July 21, 2011, the claimant testified that she was working in a patient's room on February 25, 2011, when she bumped her left knee on a Flowtron machine while walking around the patient's bed. The claimant yelled and another aide who was in the room asked if the claimant was okay. The claimant did not immediately go to the doctor, but noticed she was limping a bit, had soreness behind her left kneecap, and that she had some bruising and tenderness. The claimant first sought medical treatment at Eastern Niagara Hospital's emergency room on March 21, 2011, and provided a history that she was walking at the parade and helped a friend push a car. The claimant testified that she did not push a car, but was rather driving the car when it stalled in front of a driveway and her boyfriend and others pushed the car forward so her neighbor could go into the driveway without having to go on the grass. The claimant testified that she did not participate in the parade, but rather stood and watched the parade for a short period of time. After going home from the parade, the claimant was limping around a little bit. The claimant did not tell anyone at the emergency room about the February 25, 2011, incident at work because she did not correlate her left knee pain to the incident. Later on March 21, 2011, the claimant went to the emergency room at Millard Fillmore Hospital where she provided a history that she walked all day at the parade and pushed a friend's car. She was told come back if the pain recurs. The claimant first filed an accident report on April 1, 2011. The claimant next sought treatment for her left knee on April 2, 2011, when she went to Sweet Home Family Medicine and saw Dr. Usen. The claimant provided Dr. Usen a history of the February 25, 2011, work accident. Dr. Usen referred the claimant to Dr. Schlehr, whom the claimant saw on April 11, 2011. Upon seeing Dr. Schlehr, the claimant told him about her prior emergency room visits and that she walked in the parade. Dr. Schlehr recommended arthroscopic surgery to shave the meniscus down. The claimant worked as a per diem nurse and had not worked since February 25, 2011.

The employer's staffing manager also testified on July 21, 2011. Between February 25, 2011, and March 24, 2011, the staffing manager tried to contact the claimant on several occasions concerning work assignments. Claimant was given one work assignment during that period, but called in sick. Earlier in the week of March 24, 2011, the claimant agreed to work a four-week assignment and was scheduled to begin this job on April 9, 2011; claimant did not mention that she was injured. However, the claimant came into the office on March 24, 2011, on crutches and stated she could not perform the assignment or any other job because of her left knee injury. Claimant advised that she injured her knee when "she hit it on the bed" (Transcript, 7/21/11 Hearing, p. 27).

The claimant's orthopedist, Dr. Schlehr, was deposed on September 12, 2011. Dr. Schlehr testified he first treated the claimant on April 11, 2011, for a left knee injury. At that time, the claimant provided a history that she hit her left knee on a pneumatic pump apparatus at the end of a patient's bed on February 25, 2011. The claimant further stated that she did not immediately think she was injured, but later on noticed a bruise, pain while walking, and then fell to the floor in great pain while getting ready for bed. Dr. Schlehr reviewed an MRI scan which revealed a tear of the lateral meniscus. Dr. Schlehr testified that the claimant's work injury was consistent with the meniscus tear. Dr. Schlehr did not receive a history that the claimant marched in a parade or pushed a car. X-rays taken on April 11, 2011, showed the claimant had bilateral compartment arthritis. Dr. Schlehr testified that arthritis could progress to a tear of the meniscus. Hypothetically, if the claimant pushed a car and twisted her knee, it could cause a meniscus tear.

Prior to the WCLJ's decision, the claimant underwent left knee surgery on August 25, 2011.

In a reserved decision filed October 7, 2011, the WCLJ established the case for a left knee injury. The WCLJ credited the claimant's testimony that her February 25, 2011, work accident caused her left knee to give way on March 21, 2011. The WCLJ further credited the claimant's testimony when she stated she did not participate in the parade and did not push a car on March 21, 2011

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 [2009]). When there is conflicting evidence, the Board is afforded deference in determining witness credibility, and as long as such determination is supported by substantial evidence, such decision will be upheld despite the existence of evidence that may have supported a different result (Matter of Guifarro v Zalman, Reiss & Assoc., 52 AD3d 1126 [2008]).

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 heard claimant's testimony and was able to observe her demeanor found that she credibly testified that she injured her left knee at work on February 25, 2011, that she did not march in the St. Patrick's Day Parade, and that she did not push a car. In addition, Dr. Schlehr credibly testified that despite the claimant's pre-existing arthritis, the claimant's February 25, 2011, work accident could plausibly cause a torn meniscus and the need for left knee surgery. Although the carrier produced Dr. Faulk's consultant's report finding the claimant's disability and need for surgery and is solely related to the claimant's arthritic condition, there is no evidence that the claimant required left knee surgery prior to February 25, 2011.

Therefore, the Full Board finds that the preponderance of the credible evidence in the record supports a finding that claimant sustained an accidental left knee injury arising out of and in the course of her employment on February 25, 2011, and that her disability is causally related to that accident.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on October 7, 2011, is AFFIRMED. No further action is planned by the Board at this time.