The Full Board, at its meeting held on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 22, 2012.
The issue presented for Mandatory Full Board Review is whether the claim should be disallowed pursuant to Workers' Compensation Law (WCL) § 18 based on claimant's failure to provide timely notice of his injury to his employer.
The Workers' Compensation Law Judge (WCLJ) disallowed the claim pursuant to WCL § 18.
The Board Panel majority reversed the WCLJ's decision, concluding that although the claimant did not give timely written notice to the employer, he met his burden of showing a lack of prejudice to the employer.
The dissenting Board Panel member would have disallowed the claim, finding that there is no "contemporaneous record specifying the treatment received by the claimant [and that] there is no contemporaneous medical evidence in the record indicating any specific history or sites of injury."
In their application for Mandatory Full Board Review filed on September 21, 2012, the attorneys for the carrier argue that the dissenting opinion should be adopted. The carrier asserts that the Board Panel majority mischaracterizes the testimony and evidence in the case to reach its conclusion, and therefore its finding of credibility, which was based on a mischaracterization of the evidence, was erroneous. The carrier further argues that the employer was prejudiced because it did not have actual knowledge of the accident.
In a rebuttal filed with the Board on September 27, 2012, the attorneys for the claimant argue that the majority opinion should be adopted because the majority correctly decided that based on the credible evidence in the record, the requirement for timely written notice as required by WCL § 18 should be waived.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On April 15, 2011, the employer filed a C-2 (Employer's Report of Work-Related Injury/Illness) reporting that the claimant injured his back while using tongs to grab a jacket. The employer indicated that the claimant never reported the injury until nine months after the alleged date of accident of May 3, 2010.
On April 22, 2011, the carrier filed a C-7 (Notice that Right to Compensation is Controverted) controverting the claim on several grounds, including the claimant's failure to give timely notice as required by WCL § 18.
On June 1, 2011, the claimant filed a C-3 (Employee Claim) to report that he was injured on May 3, 2010, while working as an autoclave operator. The claimant stated that he injured his back when he was "using tongs to level jacket." The claimant indicated that he orally informed the employer of his accident on May 3, 2010, and that someone did witness the accident.
The earliest medical evidence that contains a work-related history of injury is an EC-4NARR report of an initial examination on April 11, 2011, signed by Dr. Tallarico, the claimant's orthopedic physician. In the attached narrative report, Dr. Tallarico noted that on May 3, 2010, the claimant's back began to bother him while at work, and seemed to worsen when he was going up and down stairs. It is noted that Dr. Tallarico's initial report contains no history of an injury to the claimant's back related to using tongs to level a jacket of steel. Dr. Tallarico indicated that the claimant asked his occupational health office for medication, and was told to bring in medication from home; the claimant followed-up with his primary care physician, and underwent physical therapy. Dr. Tallarico diagnosed the claimant with a causally related back injury, and concluded that the claimant exhibited a mild to moderate (33%) impairment.
The earliest medical evidence that contains a history of injury involving an accident similar to that described on the claimant's C-3 form is a report of an initial examination on June 9, 2011, by Dr. Ho, the claimant's physical medicine specialist. Dr. Ho diagnosed lumbar spinal stenosis, causally related to an injury at work on May 3, 2010. The attached narrative report indicates that the claimant reported that he injured his back at work as he was trying to stabilize a jacket full of steel with tongs.
At the hearing held on July 12, 2011, testimony was taken of the claimant, the claimant's supervisor, the employer's safety director, the employer's nurse, and the co-worker listed as the witness to the claimant's injury on his C-3 form.
The claimant testified that he worked as an autoclave operator, and his job duties included making steel components. In his job, he used tongs to place the steel in jackets, which are then placed into furnaces. Jackets weighed approximately two thousand pounds. The tongs are six feet tall, and the claimant had to squeeze them shut around the jacket manually, which takes great strength. On May 3, 2010, while using the tongs to move a jacket of steel, the claimant felt pain in his back. The claimant's co-worker observed the claimant bent over after the accident. Although the claimant tried to tell his supervisor that he was going to the nurse's office, his supervisor was on the phone and ignored the claimant. The claimant went to the company nurse a few hours later, but she was not in her office and the office was locked. He then went to the security guard office to ask the whereabouts of the nurse. The claimant returned to the nurse's office shortly thereafter. The claimant told the nurse that he had injured his back, he complained of pain in his back, and requested pain medication. The nurse told him that there was nothing she could do for him. She advised the claimant to bring in pain medication from home, or to purchase some at the pharmacy. The safety coordinator was in the nurse's office when the claimant spoke with the nurse. When the claimant told the nurse that employees were not machines, and that the men cannot just be ordered back to work when injured, the safety coordinator corrected the claimant's use of the word men, and indicated that women also worked at the plant. Another worker then entered the nurse's office. The nurse, the safety coordinator, and the other employee were all present and heard the claimant complain about an injury to his low back; he got to the point that he was screaming. Thereafter, sometime in May, the claimant sought treatment with his general practitioner, Dr. Daly. The claimant testified that the employer suspended him for approximately three weeks due to his behavior on May 3, 2010, toward the security guard, the nurse, and members of his department. The claimant stated that he did not go to the nurse's office regularly, and usually only went once per year for the annual physical.
The claimant's supervisor testified that the claimant never reported a work-related back accident. On the morning of May 3, 2010, the claimant did advise the supervisor that he was going to the nurse's office but the supervisor denied that the claimant offered any reason for going to the nurse's office. The claimant got into an argument with the nurse, because the nurse's office was not open. The supervisor told the claimant to calm down. He indicated that in the past, the claimant had frequently gone to the nurse's office for minor things, such as cold remedies. The supervisor conceded that the claimant's job was manual labor, and required brute strength to move the heavy steel jackets.
The employer's safety director testified that she was the nurse's direct supervisor. The employer's accident reporting policy required injured employees to call security, and for security to bring the employee to the nurse's office. At the nurse's office, the employee is evaluated and forms are completed. The witness stated that on May 5, 2010 (rather than May 3, 2010), she and the nurse got a phone call that the claimant was at the nurse's office, requesting pain medication. The witness and the nurse went to the nurse's office, and the claimant stated that he needed pain medication for his back. The claimant did not report a work-related accident, and only stated that his back had been bothering him. The witness could not recall if she asked the claimant why his back was hurting. Thereafter, there was a verbal argument between the claimant, the witness, and the nurse, but the claimant ultimately calmed down. However, disciplinary action was taken and harassment charges were filed against the claimant due to his behavior on May 5, 2010. The claimant went to the nurse's office approximately once per month for minor things, such as cold remedies, antacid tablets, and Tylenol.
The employer's nurse testified that the claimant first reported a back injury on April 11, 2011. The claimant had a prior work-related back injury in 1996. The nurse stated that on May 5, 2010 (rather than May 3, 2010), the claimant went to the guard shack indicating that he needed Tylenol. The security guard called the nurse and she went to open the nurse's office. The claimant was irate and told the nurse that she should have been in her office. The claimant told her that he wanted pain medication for his back. She denied that the claimant reported a work-related accident. The claimant had gone to the nurse's office for Tylenol in the past.
The co-worker who claimant listed on his C-3 as a witness to his accident testified that on May 3, 2010, he observed the claimant slumped over with his hands on his knees. The co-worker asked the claimant what was wrong, and the claimant replied that it was his back.
A copy of an "illness/injury report form" which was completed by the nurse, signed by the claimant, and dated April 11, 2011, was submitted into evidence during the testimony of the safety director (ECF Doc ID #183204781). The report states that May 3, 2010, was the date of accident and that the accident was not reported until April 11, 2011. The accident occurred while the claimant was using tongs to grab a jacket and he felt pain in his lower back. The nurse was out of the office when the claimant reported the injury so no assessment was done at the medical department. The form states that there was a witness to the injury (the same name that was provided on the claimant's C-3 form), and the form also states that the injury was reported to the claimant's supervisor.
The Board file also contains a copy of an unsigned "incident report" dated May 6, 2010 (ECF Doc ID #183204757). The report states that on May 5, 2010, the claimant made derogatory remarks about female workers at the employer.
On July 15, 2011, the Board received another copy of the "illness/injury report form" dated April 11, 2011, with attached handwritten notes from the nurse dated May 5, 2010 (ECF Doc ID #183377119, pp. 2-3). The notes indicate that the claimant came to the medical department that day looking for Tylenol and he was upset that no one was there when he arrived at the medical department. The notes further indicate that the claimant made some comments regarding female workers at the employer, and that he stated that the employer should "just get rid of first aid and [he threatened] to just go see his [doctor] (put in a [workers' compensation] claim.)"
In a reserved decision filed on September 13, 2011, the WCLJ disallowed the claim, finding that the claimant failed to provide the employer with timely notice of his alleged accident, as required by WCL § 18. The WCLJ found that the claimant was not credible and that he did not meet his burden of showing that his untimely notice to the employer did not prejudice the employer.
"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  [internal citations and quotation marks omitted]).
Here, the record contains insufficient evidence that the claimant gave the employer written notice of his accident within 30 days, since the only evidence of written notice is the "illness/injury report form" that was signed by the claimant, and dated April 11, 2011.
Nevertheless, the claimant's failure to provide timely written notice may be excused if the claimant provided oral notice of the accident. 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'" (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402  quoting Matter of Pisarek v Utica Cutlery, 26 AD3d 619 ).
On his C-3 form, the claimant alleged that he orally notified his supervisor of the injury on May 3, 2010, the date that it occurred. During his testimony, the claimant explained that he tried to tell his supervisor that he was going to the nurse's office, but his supervisor was on the phone and ignored the claimant. However, the claimant's supervisor testified that on the morning of May 3, 2010, the claimant did inform him that he was going to the nurse's office but the supervisor stated that the claimant did not state the reason for going to the nurse's office. Further, both the safety director and the nurse testified and confirmed that the claimant did request pain medication for his back on May 5, 2010. Finally, although the nurse denied during her testimony that the claimant reported a work-related accident, the nurse's notes dated May 5, 2010 (ECF Doc ID #183377119, pp. 2-3) confirm that the claimant reported back pain, requested medication, and indicated that he was filing a workers' compensation claim.
"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 )" (Matter of Jones v New York State Dept. of Correction, 35 AD3d 1025 ; see also Matter of Ridgeway v RGRTA Regional Tr. Serv., 68 AD3d 1219 ).
The testimony of the claimant was more credible than that of the employer witnesses. Specifically, while the nurse testified that the claimant did not report any accident until April 11, 2011, the nurse's testimony in this regard lacks credibility since it is contradicted by her written notes that were prepared on May 5, 2010, just two days after the alleged accident date on May 3, 2010.
Therefore, the Full Board finds that the claim should not be disallowed pursuant to WCL § 18, and continues the case for consideration of the remaining issues.
ACCORDINGLY, the WCLJ reserved decision filed September 13, 2011, is RESCINDED, and the case is restored to the calendar for consideration of the remaining issues. The case is continued.