The Full Board at its meeting on July 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision filed September 20, 2012.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) established the claim for injuries to the claimant's back, right knee, and right shoulder, and made awards. The WCLJ did not address the issue of notice.
The Board Panel majority affirmed the WCLJ, finding that the "inconsistencies in claimant's stories of the source of her pain do not detract from the dispositive facts that she was unequivocal in each report she made that the injury occurred while working, and that it manifested itself at a specific time and place, and that she sought medical attention for the injuries the next morning." The majority also determined that the claimant reported her injury to the employer within three days of her date of accident.
The dissenting Board Panel member determined that "the claimant's numerous inconsistencies and lack of credibility necessitates a finding that she has failed to sufficiently show that she was injured at work on August 9, 2010."
The carrier filed an application for Mandatory Full Board review on October 17, 2012.
The claimant filed a rebuttal on November 16, 2012.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a delivery driver, filed a C-3 (Employee Claim) with the Board on October 8, 2010, in which she alleged injuries to her back, right knee, and right shoulder that occurred on August 9, 2010, while "lifting packages over period of time on that day." Claimant indicated that she gave oral notice of her injury to her manager on August 9, 2010. The claimant indicated that she had sustained a previous injury to the same body part in a prior work-related accident while working for the same employer.
In a C-2 (Employer's Report of Work-Related Injury) filed on November 4, 2010, the employer indicated that it received notice of claimant's alleged injury on October 29, 2010, via claimant's C-3. The C-2 states: "This incident was reported directly to carrier/claim administrator by the employee or employee representative, thus, information provided is subject to investigation and verification with employer."
The carrier filed a C-7 (Notice that Right to Compensation is Controverted) on November 29, 2010, in which it raised the issues of prima facie medical evidence, accident, notice, and pre-existing condition.
In an August 10, 2010, medical report by Richmond University Medical Center, the claimant was diagnosed with chronic back pain. The report states that the claimant's lower back pain began around 10:00 PM on August 9, 2010, that it was "associated with left leg and Lt shoulder pain," and that the claimant had "lifted heavy items [up and down] the stairs the whole day yesterday at work."
In a handwritten note dated September 8, 2010, Dr. Hasan, the claimant's general practitioner, indicated that the claimant's "severe" low back, right knee, and right shoulder pain were "due to heavy lifting at the job" on August 9, 2010.
In a C-4 (Doctor's Initial Report) prepared on December 4, 2010, Dr. Hasan reported that he had treated the claimant ten times between August 12, 2010, and December 4, 2010. Dr. Hasan stated that "on 08.09.10 at around 8:30PM, while opening the door to fix the delivery packages, she tripped, fell, and hurt her rt. lower back, rt. knee joint, and the rt. shoulder joint." The doctor indicated that the claimant could return to work on December 6, 2010, but that she should not lift in excess of 10 to 15 pounds.
Dr. Zolan, the carrier's consultant, examined the claimant on February 10, 2011. In the resulting IME-4 (Practitioner's Report of Independent Medical Examination), Dr. Zolan reported that the claimant had "various reasons" for the injuries she allegedly sustained at work on August 9, 2010, and indicated the following:
One is that for weeks or even months leading up to this date, she had an unusually heavy route, over 300 packages, delivering to large shops such as BestBuy and Toys R Us and claimed that these were heavy and this caused her to have problems with her back, knee, and shoulder. She also indicates that some type of key broke and did not allow her to lift the lift gate at the back of the package car appropriately, and she needed to get onto her hands and knees and repeatedly climb over packages in order to deliver them. She alleges that she asked for an assistant at that point, and also later in the same day, she fell to her right side injuring her back, right shoulder, and right knee.
Dr. Zolan noted that the claimant had undergone lumbar spine surgery with a fusion and instrumentation in 2001. "Despite this, she says was able to go back to work and that her back was fine until on or around the date of alleged injury. She denied injuries or problems with her shoulders or knees." The doctor opined that the claimant had a moderate disability and diagnosed her with a right shoulder and right knee sprain, "clinically resolved," and exacerbation of a pre-existing lumbar condition status post prior lumbar fusion and instrumentation.
The claimant testified at a hearing held on March 16, 2011, that she began working for the employer on March 3, 1991. She explained that she was injured while working around 8:30PM on August 9, 2010. The claimant testified that while working she received a message advising her that she had to return to headquarters. She explained that she began organizing the next day's deliveries in the back of the truck when she slipped and fell. When she awoke the next morning, her right low back, right shoulder, and right knee were in pain. She visited the emergency room at Richmond University Medical Center at 7:30 AM on August 10, 2010. The claimant testified that she called and notified her manager about the accident on the morning of August 10, 2010. Her supervisor advised her that she had three days to fill out an accident report. The claimant explained that when she returned to headquarters on the evening of August 9, 2010, no one else was present. She notified another manager in person about the accident within three days of August 9, 2010. The claimant's manager advised the district manager about the accident, but she was not permitted to fill out an incident report. The claimant further testified that she had two back surgeries in 2001, after which she returned to work in a full-duty capacity.
Upon cross-examination, the claimant was asked why she did not indicate on the C-3 form that she had slipped and fallen on August 9, 2010. The claimant replied: "I thought it was put down." She explained that she was out of work from April 2009 to January 2010 due to back pain. The claimant conceded that she injured her right knee "[m]aybe one or two" times a "few years back," and that she had previously injured her right shoulder. The claimant was unsure if she filed workers' compensation claims with respect to the prior injuries. The claimant testified that she requested assistance from the dispatcher in the week preceding August 9, 2010, as the lift gate of her delivery truck was broken. She stated that her manager was aware that the key to the truck's lift gate was broken. The claimant's doctor had advised her that she could return to work in a light duty capacity approximately one week prior.
The claimant's manager also testified at the March 16, 2011, hearing. The manager denied that the claimant requested assistance with her route prior to August 9, 2010. He testified that someone called in sick on the claimant's behalf in August 2010, and that claimant did not return to work thereafter. The manager was not the one who received the call. The manager was not aware that the claimant had sustained a work-related injury until she filed a workers' compensation claim. He explained that light duty positions were available to employees that present a doctor's note detailing their restrictions. The employer's policy is that employees should immediately provide management with a verbal notification of any injuries, so that they can "investigate and be proactive."
Dr. Zolan testified at a deposition held on April 25, 2011, that he examined the claimant on February 10, 2011. Dr. Zolan testified that the claimant advised him that her back, right shoulder, and right knee injuries were caused by an "especially heavy" route in the weeks and months leading up to August 9, 2010, her repeated need to crawl over packages due to the broken lift gate on her delivery vehicle, and falling on her right side on August 9, 2010. With respect to her medical history, the claimant advised the doctor that she had lumbar spine surgery in 2001, but she "denied any problems or injuries with her shoulders or knees." Dr. Zolan diagnosed the claimant with right knee and right shoulder sprains that had clinically resolved and an exacerbation of a pre-existing lumbar condition. The doctor opined that the claimant's injuries were causally related to a work-related fall, although the heavy lifting she performed in the weeks leading up to August 9, 2010, could have also aggravated her back condition.
Dr. Hasan testified at a deposition held on May 10, 2011, that he first treated the claimant on August 12, 2010, with respect to her alleged work-related injury. The claimant advised the doctor that she tripped and fell at 8:30 PM on August 9, 2010, while delivering packages, and that she was transported to Staten Island Hospital by ambulance the next morning. Dr. Hasan opined that the claimant's injuries were causally related to her August 9, 2010, accident, and that she was totally disabled. Although he did not submit any medical reports to the Board after December 4, 2010, Dr. Hasan treated the claimant on January 22, February 5, February 26, March 12, and April 1, 2011. The doctor opined that the claimant remained totally disabled as of his last examination on April 1, 2011.
Upon cross-examination, Dr. Hasan testified that he did not ask the claimant about her prior medical history. The doctor explained that he had treated the claimant since January 2005, and that he was aware of her prior back surgery. Dr. Hasan was not aware that the claimant had previously injured her right shoulder and right knee. The claimant had difficulty getting onto the examination table and the doctor observed her ambulating with a cane, although he did not document it in any of his reports. Dr. Hasan testified that the claimant was totally impaired and could not perform sedentary work.
In a reserved decision filed on June 8, 2011, the WCLJ established the claim for injuries to the claimant's back, right knee, and right shoulder, and issued awards from August 12, 2010, to December 4, 2010, at the weekly rate of $544.67. The WCLJ did not address the issue of notice.
It is "axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). WCL § 21 provides a presumption that, in the absence of substantial evidence to the contrary, "the claim comes within the provision" of the Workers' Compensation Law. However, "that statute does now wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of" the claimant's employment (Matter of Bond v Suffolk Transp. Serv., 68 AD3d 1341  [citations omitted]). Thus, the presumption cannot be used to show that an accident occurred and a claimant is still required to provide credible evidence that an injury was sustained while working for the employer (see Matter of Fedor-Leo v Broome County Sheriff's Dept., 305 AD2d 760 ). Furthermore, the Board is responsible for making credibility determinations and is not bound by the testimony of the claimant (see Matter of Sugnet v Hanna Furnace Corp., 33 AD2d 1064 ; Matter of Wood v Colonial Tavern & Rest., 22 AD2d 984 , lv denied 15 NY2d 486 ).
The Full Board finds, upon review of the evidence of record, that claimant had accidental injury to her back, right knee, and right shoulder, arising out of and in the course of her employment. The claimant consistently reported to the medical providers of record that she sustained these injuries at work on August 9, 2010. The claimant also sought medical treatment for her injuries the morning of August 10, 2010, and reported that she was seeking treatment for work-related injuries that she sustained the day before. The medical report from Richmond University Medical Center dated August 10, 2010, confirms the claimant's report of work-related injuries on August 9, 2010. The inconsistencies reported by the claimant with respect to the mechanism of her injuries do not require disallowance of the instant claim.
"Workers' Compensation Law § 18 requires claimants seeking benefits to provide their employers with written notice of a compensable injury 'within thirty days after the accident causing such injury' (see Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784 ) … Failure to provide such notice bars any claim, unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced (see Workers' Compensation Law § 18). The Board is not required to excuse a claimant's failure to give timely written notice even if one of these grounds is proven; the matter rests within the Board's discretion" (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402 ). When it is alleged that prompt oral notice was provided to the employer or to the employer's agent, "'resolution of the sufficiency of a claimant's oral notice is a matter within the exclusive province of the Board'" (id. quoting Matter of Pisarek v Utica Cutlery, 26 AD3d 619 ).
The claimant credibly testified that she notified her manager of the accident by telephone on the morning of August 10, 2010, and notified another manager in person about the accident within three days of August 9, 2010. While the claimant's manager did not concede with respect to the issue of notice, he did admit that someone called in sick on the claimant's behalf sometime in August 2010, and that claimant did not return to work thereafter. Therefore, the Full Board further finds that the claimant provided timely notice of her August 9, 2010, accident to the employer.
ACCORDINGLY, the WCLJ reserved decision filed on June 8, 2011, is AFFIRMED. No further action is planned by the Board at this time.