The Full Board, at its meeting on June 18, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on August 27, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant sustained an accidental injury in the course of his employment.
The Workers' Compensation Law Judge (WCLJ) found that the contemporaneous medical evidence did not support the history of a work-related accident and disallowed the claim.
The Board Panel majority reversed the WCLJ's decision and established the claim.
The dissenting Board Panel member concurred with the WCLJ's credibility assessment of the witnesses, and found that the more persuasive evidence is the July 18, 2010, emergency room report from Good Samaritan Hospital.
On September 25, 2012, the self-insured employer filed an application for Mandatory Full Board Review.
On October 19, 2012, the claimant filed a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
In a C-3 (Employee Claim) dated July 21, 2010, the claimant, a housing maintenance worker for the New York City Housing Authority, indicated that at approximately 1:30 p.m. on Friday, July 16, 2010, he sustained a fractured eye socket as a result of bending down to pick up tools and hitting his head on a sink. According to claimant, the injury occurred while he was attempting to clear a blockage from a sink and bathtub. The claimant further indicated that the injury occurred at "Tenants Apt 1N South Jamaica Houses" and that he was first treated for his injury at Good Samaritan Hospital on July 18, 2010.
The Emergency Department staff from Good Samaritan Hospital issued a nine page report in connection with the claimant's visit on July 18, 2010. The first section of the report is entitled "Triage" and indicates the following: "Pt (patient) states he was hit in the head while in the pool a few hours ago. Pt states he had a lump on his forehead and put ice on it. Now pt states eye swollen and has tingling to both hands and developed a bloody nose. Also has blurry vision and some nausea." The information in the Triage portion of the report along with the information contained in the "Current Meds/Current Meds/Allergies/Vital Signs/Past History" sections of the report were input by E. Cohen, RN. In the "History of Present Illness" section of the report, Dr. Affortunato indicates that: "Pt is a 61M with no (history of) DM (Diabetes Mellitus) presents with head injury after a person jumped in the pool and landed on his head. Patient now complains of swelling to his left eye, headache, and b/l (bilateral) hand 'pins and needles' sensation. Denies LOC (loss of consciousness)." Dr. Affortnuato ordered CT scans of the brain, facial bones and cervical spine. The next part of the report includes the findings of the CT scans, which revealed a left orbital fracture. Under "Nursing Assessment Note" input at 04:57 on July 18, 2010, it indicates the following: "Hematoma noted to middle of forehead. Left eye upper lid + swelling + blurry vision + HA (headache) + dizziness. Pt states while swimming in a pool earlier this evening someone jumped in and landed on top of him. No LOC. Will monitor." The report lists the diagnosis as "fracture - facial bone(s), closed and Closed head injury (CHI)." The report further indicates that the claimant was prescribed medications and discharged at 12:04 p.m. on July 18, 2010, with instructions to follow-up with his primary care doctor in two to four days and with Dr. DaSilva in one week.
The claimant was examined by Dr. DaSilva, a plastic surgeon, at Good Samaritan Hospital, on July 18, 2010. In a C-4 form for the examination filed on September 22, 2010, Dr. DaSilva indicated that the claimant sustained blunt trauma to the left eye and a left orbital fracture. The report did not include a history of the accident.
The claimant was examined by his family practitioner, Dr. Lewandoski, on July 20, 2010. Dr. Lewandoski indicated in a C-4 form that the claimant struck a sink with his face and sustained a left orbital blowout fracture. Dr. Lewandoski recommended that the claimant follow up with a plastic surgeon.
Although the self-insured employer (SIE) initially accepted the claim for injuries to the head and eye socket, the SIE filed a C-7.0 (Notice that Right to Compensation is Controverted) on September 23, 2010, noting that it received new medical evidence, namely, the Good Samaritan Emergency Department report, indicating that the claimant's injuries did not arise out of or occur in the course of his employment.
At a hearing on February 14, 2011, the claimant testified that he began working as a maintenance worker for the employer in 1997, and that on July 16, 2010, he was assigned to clear a stoppage in a tenant's apartment bathroom at the South Jamaica Houses. The claimant testified that he was sweating, a tool dropped out of his hand, and that when he reached down to grab the tool his glasses slid off his face from the sweat and he slammed his face into the basin of sink. The claimant indicated that the actual stoppage was in the bathtub, but that he was able to run the snake through the sink drain because the bathtub and sink drains are connected. The claimant secured a signed statement from the tenant of 107-47 150th Street, Apt. 3-A, Jamaica, NY, which was marked as Claimant's Exhibit "A." The claimant testified that once he was injured, he immediately went back to the office (approximately three blocks away from apartment where the injury occurred) to notify the assistant supervisor on duty, who retired in September 2010, and submitted an incident report. The top part of the report was filled out by the claimant and the bottom portion was completed by the assistant supervisor. A copy of the incident report, which is not dated, was entered into evidence and marked as Claimant's Exhibit "B." The claimant testified that after filling out the report, the assistant supervisor called a co-worker to drive him home because the claimant's vision was blurry. The claimant left his car in the parking lot at work. The claimant's normal work hours are 8:30 a.m. to 4:30 p.m. The claimant described his relationship with the co-worker who drove him home (hereinafter "co-worker") as that of colleagues/friends who work on union matters together. He has had her over at his home in the past for dinner along with other co-workers. The co-worker drove the claimant from the office for South Jamaica Houses in Queens to the claimant's home in Wyandanch, Long Island.
The claimant further testified that he did not seek medical treatment until the next night, on July 17, 2010, around 10:00/11:00 p.m., when his co-worker and a relative, both of whom were at the claimant's house for a party, drove him to the Good Samaritan Hospital, after he blew his nose, blood came out, and his family convinced him to go to the hospital. The claimant further explained that he was having a kid's party for his grandchildren and other children in his back yard and there was a small pool present, but that the adults were standing on the side, and not in the pool. The claimant went on to explain that he told the first nurse in the triage area at the emergency department that he had hit his face while at work, and she asked him what took him so long to come in. He explained to her that his family convinced him to come in. In the midst of that conversation, another "young lady" sat at the right side of him and started typing on a computer. The claimant did not recall filling any paperwork out himself. When questioned about the discrepancy in the emergency room records regarding an injury in a swimming pool, the claimant surmised that the "young lady" that came in midway in the conversation between him and the first nurse, must have misunderstood or perhaps the discrepancy was due to it being late at night, or a combination thereof. Later in the evening, the claimant saw a doctor who took additional history from him, including asking him verbally what had happened. At no time when he was at the hospital on that day did anyone show him or ask him to confirm a written report or written history. The first time the claimant saw the emergency room report was when he came to court. The claimant was seen by Dr. DaSilva at the hospital and by Dr. Lewandoski on the following Monday.
Next, the claimant produced a signed statement from MP dated October 12, 2010, which indicated that she accompanied the claimant to the hospital and was standing with the claimant as he explained to the nurse on duty how and where his injury occurred while at work. This document was marked as Claimant's Exhibit "C." The claimant explained that MP was with him in the hospital while he was giving the history of how he was injured at work. The claimant also indicated that his co-worker was also present when he spoke to the first lady in triage. Next, the claimant presented a signed statement from his neighbor dated October 22, 2010, that indicated he observed the claimant on Friday, July 16, 2010, between 7:00 p.m. and 7:30 p.m., at which time he noticed a black mark under the claimant's left eye and swelling to the left side of his face. The claimant explained that his neighbor was standing outside when his co-worker dropped the claimant off at home. Claimant's neighbor's statement was marked as Claimant's Exhibit "D." The claimant testified that his accident took place at approximately 3:30 p.m./3:45 p.m. and that his co-worker arrived to the South Jamaica Apartments office after 4:30 p.m. and drove the claimant from Queens to his home in Wyandanch, Long Island.
On cross-examination, when asked why, if he arrived home between 7:00 p.m. and 7:30 p.m., the drive from Queens to Long Island took so long, the claimant indicated that his co-worker did not get to the office until approximately 5:15 p.m. and that there was traffic because it was rush hour. With respect to the incident report, the claimant explained that he filled out the top part and that he believed the signature at the bottom was that of the assistant supervisor on duty, but he did not recall if he actually saw the assistant supervisor sign the document. The claimant indicated that he gave the paperwork to the assistant supervisor on Friday afternoon, and was told to follow up with another supervisor on Monday. When the claimant called in on Monday, he spoke to the other supervisor who said she had heard what happened to him on Friday. The claimant was out of work from July 16, 2010 (sic - July 19, 2010), to October 13, 2010.
Claimant's co-worker testified at the hearing held on February 14, 2011, that she is a janitorial supervisor for the employer of record, and is the claimant's co-worker. She works at a different development, the Marlboro Houses in Brooklyn. She received a telephone call from the assistant supervisor concerning the claimant's injury and was asked if she could accompany him home. She arrived at the maintenance area of the South Jamaica apartments on July 16, 2010, at around 5:00 P.M. to 5:30 P.M., and found the claimant alone in the office. She testified that the claimant's face was swollen and he reported injuring himself on a sink basin while attempting to clear a blockage. The witness indicated that she knew the claimant for about eight years and drove him home. She recalled that there was a lot of traffic due to it being rush hour. On cross-examination, claimant's co-worker indicated that she and the claimant were both active in the union, but that she had never attended union functions at the claimant's house and the only time she had ever been to the claimant's house was when she dropped him off on July 16, 2010. When questioned by the WCLJ whether she was at the claimant's house the next day for a party, she testified that she went to check his (claimant's) face because it was quite swollen, and when she got to the claimant's house, she and his family persuaded him to go to the hospital. She then escorted the claimant to the hospital along with one of his nieces or cousins.
At a hearing on March 14, 2011, and by decision filed on March 17, 2011, the WCLJ directed the parties to complete and submit deposition testimony of the claimant's attending plastic surgeon, Dr. DaSilva, and family practitioner, Dr. Lewandoski, in accordance with Workers' Compensation Law (WCL) §§ 121 and 142.
Dr. Lewandoski testified by deposition on April 6, 2011, that he treated the claimant on July 20, 2010, and the claimant reported dropping a tool on July 16, 2010, bending down and striking his left eye into the sink basin. Dr. Lewandoski indicated that the claimant eventually went to the emergency room and was diagnosed with a fracture of the left eye socket.
At a hearing held on April 13, 2011, the assistant supervisor testified that he is retired, but that he used to work for the employer of record. Assistant supervisor indicated that he was in charge of maintenance and grounds services, and supervised maintenance and ground caretakers. Assistant supervisor testified that he became aware of the claimant's injuries when the claimant called in on Monday, July 19, 2010. He denied knowing the co-worker claimant alleges drove him home after his accident, denied calling her on July 16, 2010, and indicated that it would not have been protocol to call another employee to drive the claimant home. The assistant supervisor identified the incident report that was marked as Claimant's Exhibit "B" as the document used by the employer to report work-related accidents. However, he noted that the signature on the report was not his and that he was not aware of the claimant's injury until Monday, July 19, 2010, when the claimant called in to report the accident. Upon claimant calling in, assistant supervisor notified the superintendent at the development where claimant worked.
The superintendent testified at the hearing on April 13, 2011, that his job duties include overseeing the day-to-day operations at the employer's housing development. The superintendent testified that he was not informed of the claimant's injuries until Monday, July 19, 2010, when he was told by his assistant that the claimant was not at work on that day due to an accident he had sustained on Friday. On cross-examination, when questioned about the form C-2 that was filed which indicates notice was given on July 18, 2010, the superintendent indicated that he did not complete the C-2, but that the notice date was incorrect.
An employee of the New York City Housing Authority testified at the hearing on April 13, 2011, that the co-worker that claimant alleges drove him home after his injury is her supervisor. On July 16, 2010, she and her supervisor worked overtime because there was going to be an inspection and they didn't get back to the Marlboro development (in Brooklyn) until approximately 7:50 p.m., and swiped out at approximately 8:00 p.m.
At the hearing on April 13, 2011, additional testimony was taken of claimant's co-worker. She denied actually knowing who it was that called her on July 16, 2010, to indicate the claimant had an injury and request her to pick him up at work, and conceded that she did not know the assistant supervisor. She reiterated that the claimant was alone in the office when she arrived at the employer's premises and conceded that her estimate of the time she picked claimant up may have been off given that she did not know if overtime had been worked. She also indicated she and the claimant did not leave the office right away and was unsure when they left the office. However, she testified that it would have been impossible for her to have arrived at the claimant's home in Long Island between 7:00 p.m. and 7:30 p.m., as she did not get off from work in Brooklyn until 8:00 p.m., and thereafter proceeded to pick up the claimant in Queens so that she could drive him home.
Deposition testimony of Dr. DaSilva was taken on May 25, 2011. Dr. DaSilva testified that he first treated the claimant on July 18, 2010, and when he questioned the claimant about how the injury occurred, the claimant reported injuring himself while in a pool. Dr. DaSilva found that the claimant had an orbital fracture of the left eye.
The tenant of the apartment where claimant's accident allegedly occurred testified by telephone on June 14, 2011, that she had a stoppage in her bathtub and sink on July 16, 2010, and the claimant arrived around 3:30 p.m. to clear the stoppage. She heard a "thud," followed by the claimant coming out of the bathroom to tell her he was injured. She saw the claimant holding his hand over his eye, but couldn't recall which eye at the time of the testimony. The stoppage was not cleared and she had to get someone else to finish the job. On cross-examination, when presented with a work ticket that indicated a different maintenance worker from NYHA had been at her home four days earlier, on Monday, July 12, 2011, to repair the stoppage, she indicated that she could not recall when someone had been there prior to the claimant, but that she had to call again to have someone come back because the drain was still stopped.
Claimant's neighbor testified on June 14, 2011, that on July 16, 2010, he saw the claimant, his neighbor, getting out of the passenger side of a vehicle; he went over to him to talk about the dogs knocking over the garbage cans and saw the claimant holding his hand over his eye. Claimant's neighbor indicated that once the claimant removed his hand from his face, he could see a black mark under the claimant's left eye. When asked about the 7:00 p.m./7:30 p.m. time indicated in his signed statement, and whether the time might possibly have been later, he indicated yes, and was not sure of the exact time.
The claimant testified on June 14, 2011, that he didn't report the events of the accident to Dr. DaSilva, but rather a triage nurse. On cross-examination, the claimant indicated he was in a lot pain when he saw Dr. DaSilva and didn't really give details to him.
In a decision filed on June 17, 2011, the WCLJ found that the contemporaneous medical evidence did not support the history of a work-related accident and disallowed the claim.
There are numerous inconsistencies in the record.
Claimant indicated in his C-3 that the accident occurred at approximately 1:30 p.m., but later testified that the accident occurred at 3:30/3:45 p.m.
Claimant's co-worker initially testified that she had never been to the claimant's home other than to drop him off on the night of the alleged accident, but then admitted that she was actually at the claimant's home on Saturday evening, the night of the kid's party, because she stopped by to check on the claimant's face, and then accompanied the claimant to the hospital. The co-worker initially testified that she arrived to pick up the claimant in Queens on the night of the alleged incident at 5:00 p.m./5:30 p.m. However, when confronted with evidence that she had not punched out of work until 8:00 p.m. that evening, she revised her testimony.
The Good Samaritan Hospital report speaks for itself. The claimant's allegations that the triage nurse or someone who came between him and the triage nurse somehow misconstrued the history of his accident, is not credible. Three separate areas of the report, each of which was input by a distinct member of the hospital staff, including E. Cohen, RN and Dr. Affortunato, note the history of the injury. Not coincidentally, not one of them mentions a work accident; rather each note mentions that the claimant was injured while in a swimming pool. In addition, Dr. DaSilva unequivocally testified that when he questioned the claimant about how the injury occurred, the claimant reported injuring himself while in a pool.
The SIE's witnesses indicated that the SIE was not given notice of a work accident until Monday, July 19, 2011. In addition, the assistant supervisor indicated that it would not have been protocol to call another employee to drive the claimant home and that he never called the co-worker to ask that she pick claimant up. Claimant's co-worker initially testified the assistant supervisor called her and asked her to give the claimant a ride home, but later testified that she did not know the identity of the individual who had called her. Moreover, the fact that the claimant would have waited around at work for approximately four to five hours for someone to pick him up after he struck his face on a sink basin, sustaining a fracture, is highly dubious.
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 ), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 ). Here, the WCLJ who heard the testimony of the lay witnesses found that claimant did sustain the injuries he alleges in the course of his employment.
Based upon a review of the record, the Full Board finds that the claimant did not sustain a work-related injury on July 16, 2010.
ACCORDINGLY, the WCLJ decision filed on June 17, 2011, is AFFIRMED. No further action is planned by the Board at this time.