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Case # G0550978
Date of Accident: 11/09/2011
District Office: Albany
Employer: Bilotta Construction Corp
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 65427189-184
Date of Filing of Decision: 11/07/2013
Claimant's Attorney: Dennis Kenny
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 22, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on February 7, 2013.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant sustained a work-related accident on November 9, 2011; and
  2. whether the claimant has had any causally related lost time thereafter.

The Workers' Compensation Law Judge (WCLJ) determined that the claimant had a work-related accident on November 9, 2011, which resulted in injury to the claimant's left shoulder. The WCLJ awarded the claimant benefits for a period of 14.8 weeks from April 3, 2012, to July 16, 2012, at the tentative rate of $772.96, and directed the carrier to continue payments at the tentative rate.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member found that the credible evidence does not support a finding that the claimant sustained a work-related injury to his left shoulder, and would disallow the claim. The dissenting Board Panel member specifically found that the claimant's testimony regarding the occurrence of an accident to be incredible as the claimant continued to work without restriction until December 2011, when he was laid off, and the claimant did not seek treatment for his injury until several months later.

On March 8, 2013, the carrier filed an application for Mandatory Full Board Review, arguing that the substantial evidence in the record indicates that the claimant did not sustain a work-related injury to his left shoulder on November 9, 2011, and that the claimant has not sustained any causally related lost time, thereby compelling disallowance of the claim.

On April 8, 2013, the claimant filed a rebuttal, arguing that the carrier has failed to identify any error of fact or law which constitutes a proper basis for overturning the Board Panel decision. The claimant further argued that the claimant's testimony regarding the facts and circumstances surrounding his accident was credible.

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

FACTS

The claimant, an operating engineer with a construction company, filed a C-3 (Employee Claim) on January 30, 2012, alleging that on November 9, 2011, he injured his left shoulder when he dislodged a jammed grease cartridge in a grease gun while greasing a forklift. The claimant continued working full duty, without restriction, until he was subject to a seasonal layoff on December 23, 2011.

The carrier controverted the claim, arguing that there was no causal relationship between claimant's shoulder injury and his alleged November 9, 2011, accident. The carrier contends that claimant's shoulder injury was pre-existing.

The claimant first sought treatment for his left shoulder injury on April 3, 2012. In a C-4 (Doctor's Narrative Report) dated April 16, 2012, and accompanying medical narrative, claimant's treating physician, Dr. DiMarco, indicated that he examined the claimant on April 3, 2012, and noted that the claimant was experiencing pain and weakness in his left shoulder. Dr. DiMarco stated that claimant reported that on November 9, 2009, "he was pulling on a grease gun and felt something snap in his shoulder." Dr. DiMarco noted that "the pain and weakness actually seem to have progressed over time." Dr. DiMarco diagnosed the claimant with "chronic rotator cuff syndrome not responding to rest and anti-inflammatories," and opined that the incident that the claimant described was the competent medical cause of his injury. Dr. DiMarco concluded that the claimant was temporarily totally disabled.

In a Practitioner's Report of Independent Medical Examination (IME-4) dated June 13, 2012, the carrier's consultant, Dr. Reina, indicated that he examined the claimant on June 8, 2012. Dr. Reina indicated that the claimant reported that on "November 9, 2011, he was greasing a machine. The cartridge got jammed. As he tried to pull it out, he felt a 'snap' in his left shoulder with anterior shoulder pain. He advised his supervisor 'immediately' and self-treated with Advil." Dr. Reina diagnosed the claimant with "left frozen shoulder syndrome, suspect subacromial rotator cuff pathology." Dr. Reina noted that:

In reviewing the office notes from Dr. [DiMarco], who operated on [the claimant's] right shoulder in 2006...In September 2011, a reference to the right shoulder prior surgery in 2006 was noted and was described as 'doing relatively well' with some adhesive capsulitis. However, [the claimant] developed 'some compensatory discomfort in the left arm' preceding the November 9, 2011, 'grease gun' work injury.

However, Dr. Reina opined that:

the work-related incident on November 9, 2011, "appears to be the proximate cause of a significant increase or aggravation of a left shoulder 'compensatory symptoms,' which were probably occupational and related to the old injury, initially, from 2006...There may be some 'apportion-ability' to the left shoulder injury. But the bulk appears to be the November 9, 2011, cartridge incident. Nevertheless, one cannot ignore the 'compensatory symptoms' from the previous right shoulder symptom complex.

Dr. Reina concluded that the claimant was temporarily, partially disabled to a marked degree and recommended the following work restrictions: "Primary desk or tabletop activities. No overhead reaching. No pushing, pulling, carrying lifting with the left arm greater than 3 to 5 pounds with 10 pounds occasional."

During a hearing on July 16, 2012, the claimant testified that he is an operating engineer and that on November 9, 2011, he was greasing a forklift that he was operating and the cartridge got stuck in the grease gun, causing him to have to pull back on the cartridge handle to dislodge the cartridge. The claimant further testified that when he pulled on the cartridge he felt something snap inside his shoulder. According to the claimant, he immediately informed his supervisor of the incident. The claimant stated that his supervisor told him "keep an eye on it" (Hearing Minutes 7/16/2012, pg. 6). The claimant further stated that a couple of days after the incident he informed his supervisor that his shoulder was still hurting him, and his supervisor told him "let's give it a couple of weeks, see if you start to feel better" (id. at 7). According to the claimant, he requested workers' compensation paperwork from his supervisor on numerous occasions so that he could seek medical treatment; however, his supervisor kept putting off getting him the paperwork. The claimant testified that his supervisor eventually told him that "he's afraid to turn in the information, because he is afraid that he is going to get yelled at by the office manager" (id.). The claimant further testified that by the time he got laid off, he still had not received the requested paperwork. The claimant acknowledged that in September 2011, he informed Dr. DiMarco that his left shoulder "felt a little achy," but stated that he had attributed the pain to overuse (id. at 9). The claimant stated that prior to November 9, 2011, he would describe his left shoulder pain as a "3" on a scale of zero to ten, and after November 9, 2011, he would describe his pain as an "8" or "9," sometimes a "10" (id.). The claimant testified that he continued working after he injured his shoulder because he did not know the severity of his injury. At the time, the claimant believed he had merely bruised it. The claimant further testified that he continued to work for five months after injuring his right shoulder in a work-related accident in 2006. According to the claimant, he only stopped working after his doctor took him out of work based on the results of an MRI of his right shoulder.

On cross-examination, the claimant testified that he completed an accident report a couple of weeks after the accident; however the claimant stated that his supervisor requested that he change the date of the accident on the report because he didn't want to get in trouble for reporting the accident so late. The claimant indicated that he originally put November 9th down as the date of the accident, but that he or his supervisor may have changed the date to something else, but he couldn't recall. The claimant testified that after he submitted the accident report to his supervisor he still did not receive the requested workers' compensation paperwork. According to the claimant, he was able to eventually obtain the necessary paperwork from his attorneys and then he was able to finally seek medical treatment for his shoulder. The claimant acknowledged that he completed his C-3 (Employee Claim) form in February of 2012, but stated that April was the earliest that his doctor could see him.

During the hearing on July 16, 2012, the corporate secretary for the employer testified that she has worked for the employer for "well over 25 years" and that she is related to the owner of the company (id. at 28). The witness further testified that when someone is injured on the job site, the supervisor on the job site usually contacts her directly. According to the witness, once it is determined that a worker has been injured on the job and that they need to seek medical care, she completes the necessary paperwork and "hands off the paperwork" (id.). The witness stated that the supervisors have to contact her to get the paperwork. The witness testified that the claimant's supervisor never contacted her to report an injury and she never received an incident report. According to the witness, she was first notified in writing that the claimant was alleging that he had been injured at work in February 2012, when she received a letter from the claimant's attorneys. However, the witness acknowledged that in December 2011, the claimant's supervisor verbally notified her that the claimant had injured his shoulder using a grease gun. The witness stated that the claimant's supervisor did not request any paperwork because he said that "it would probably work itself out" (id. at 30).

In a reserved decision filed on July 19, 2012, the WCLJ determined that the claimant had a work-related accident on November 9, 2011, which resulted in injury to the claimant's left shoulder. The WCLJ awarded the claimant benefits a period of 14.8 weeks from April 3, 2012, to July 16, 2012, at the tentative rate of $772.96, and directed the carrier to continue payments at the tentative rate.

LEGAL ANALYSIS

Accident

In the present case, the claimant credibly testified regarding the facts and circumstance surrounding the occurrence of a work-related accident on November 9, 2011, and his resulting left shoulder injury. The fact that the claimant did not seek medical treatment until April 3, 2012, does not undermine the claimant's credibility. The claimant testified that after he injured his left shoulder, he immediately informed his supervisor of his injury, and that his supervisor merely told him "keep an eye on it." The claimant further testified that a couple of days after the incident he informed his supervisor that his shoulder was still hurting him, and his supervisor told him "let's give it a couple of weeks, see if you start to feel better." In addition to the fact that the claimant's supervisor failed to take the claimant's condition seriously, the supervisor ignored the claimant's repeated requests for workers' compensation paperwork so that he could seek medical treatment. The claimant's testimony is corroborated by the carrier's witness who testified that the claimant's supervisor verbally notified her that the claimant had injured his shoulder using a grease gun, and that the claimant's supervisor did not request any paperwork because he said that "it would probably work itself out." The claimant further testified that he was unable to seek medical treatment until April 3, 2012, because his employer did not provide him with the necessary workers' compensation paperwork until his attorneys requested it in February 2012, and that after he obtained the necessary paperwork the earliest his doctor could see him was April 3, 2012.

The fact that the claimant continued to work after he injured his left shoulder on November 9, 2011, also does not undermine the claimant's credibility with respect to the occurrence of a work-related accident. The claimant credibly testified that he continued to work because he was unaware of the severity of his injury. This is understandable given the fact that the claimant had been unable to seek medical treatment for his left shoulder at that time. Claimant's testimony is also corroborated by Dr. DiMarco's opinion that "the pain and weakness actually seem to have progressed over time." In addition, the claimant testified that when he injured his right shoulder in a work-related accident in 2006, he continued to work full duty for five months until his doctor took him out of work based on the results of an MRI. In that instance, the claimant's right shoulder ultimately needed to be surgically repaired.

Accordingly, the Board Panel majority's finding that the claimant sustained a compensable left shoulder injury on November 9, 2011, is supported by a preponderance of the evidence.

Causally Related Disability and Lost Time

In the present case, both Drs. DiMarco and Reina opined that the claimant's left shoulder injury is causally related to the work-related incident on November 9, 2011, and both Drs. determined that the claimant is temporarily disabled as a result of such injury. Dr. DiMarco opined that the claimant is temporarily totally disabled and Dr. Reina opined that the claimant is temporarily partially disabled to a marked degree. In addition, Dr. Reina recommended the following work restrictions: "Primary desk or tabletop activities. No overhead reaching. No pushing, pulling, carrying lifting with the left arm greater than 3 to 5 pounds with 10 pounds occasional."

The fact that the claimant was laid off from his employment in December 2011, does not change the fact that both the claimant's treating physician and the carrier's consultant found the claimant to be significantly disabled due to his work-related left shoulder injury, precluding him from returning to his employment as an operating engineer. The credible medical evidence in the record suggests that had the claimant not been laid off, he would have been unable to perform his job duties due to his work-related left shoulder injury.

Therefore, the Full Board finds that claimant sustained causally related lost time from April 3, 2012, to July 19, 2012, and continuing.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on July 19, 2012, is AFFIRMED. No further action is planned by the Board at this time.