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Case # G0452182
Date of Accident: 02/21/2011
District Office: Albany
Employer: 1568 Broadway Hotel
Carrier: Wausau Business Ins Co
Carrier ID No.: W225445
Carrier Case No.: WC823-A08256 4016985
Date of Filing of Decision: 11/01/2013
Claimant's Attorney: Kelman, Winston & Vallone PC
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 1, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant suffered an accidental injury arising out of and in the course of her employment.

In a reserved decision filed on April 9, 2012, the Workers' Compensation Law Judge (WCLJ) established the claim for work-related injuries to the low back, left leg, left hip and left foot, based upon an accident that happened on February 21, 2011. In a notice of decision filed on May 14, 2012, the WCLJ made awards

The Board Panel majority agreed and affirmed both decisions.

The dissenting Board Panel member would have reversed and disallowed the claim.

The carrier filed an application for Mandatory Full Board Review on November 21, 2012.

A rebuttal was not filed.

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

FACTS

The claimant, a hotel housekeeper, filed a C-3 (Employee Claim) on October 11, 2011, alleging that on February 21, 2011, as she was cleaning a guest bathroom, she slipped on a wet floor, fell down and injured her back, left foot, left hip, and left leg. The employer had previously filed a C-2 (Employer's Report of Work-Related Injury/Illness) on September 15, 2011, conceding that claimant provided notice that she had injured her left hip and upper left leg when she slipped and fell while cleaning a bathroom on February 21, 2011, on the date the accident occurred.

The carrier controverted the claim, alleging that the claimant did not seek medical treatment until four months after the accident, that she was receiving disability benefits up until August 10, 2011, and that there is no prima facie medical evidence giving a history of a work-related injury.

The claimant testified at a hearing on February 27, 2012, that on February 21, 2011, while cleaning a guest bathroom she fell on her left side, was unable to get up for five to ten minutes, and that she hurt her thigh and calf. At the end of her shift she reported the incident to her managers and she was then directed to file a written report with security, which she did. The claimant testified that she continued working until early June of 2011, at which time the pain in her left foot caused her to stop working. She did not seek medical treatment immediately because she was taking vicodin and hydrocodone for osteoarthritis on her right side, and therefore her left side was not initially painful. Claimant conceded that she had applied for disability benefits prior to applying for workers' compensation benefits (the record contains a Notice of Proof of Claim for Disability Benefits, dated 7/01/11, which states that the doctor who completed the form did not believe that the claimant's injuries arose out of the course of her employment). The claimant also acknowledged that in 2010 she had an incident at a train station that occurred as she was going up the steps, her foot slipped off the steps and she hit her right knee. The claimant testified that she saw various medical professionals following the February 21, 2011, accident, but she did not tell any of them about the accident including: the treating physician at Mid-Hudson Emergency Center where she went for pain on her left side and only stated that her left side hurt; her primary care physician, Dr. David, at Midtown Health Center; and her orthopedist, Dr. Bharim, at Midtown Health Center, who referred her to Dr. Hosny, her interventional pain specialist, for the osteoarthritis on her right side. However, the claimant did testify that at some point in her treatment with Dr. Hosny, she did tell the doctor about the accident.

The initial report by Dr. Hosny, dated June 7, 2011, states that the claimant reported that the pain, "initially started on the right side and approximately two weeks ago she developed pain in the left leg. She reports a year ago she fell down the train stairs and had knee pain." The report did not provide a history of a work-related injury. Dr. Hosny diagnosed lumbosacral radiculopathy, spinal nerved root compression, low back pain, and lumber face syndrome.

Dr. Hosny testified via deposition on March 15, 2012. He stated that he first treated the claimant on June 7, 2011, at which time she had complaints of low back and leg pain that she told him was due to a fall on train stairs in 2010. The doctor opined that he thought that her injuries were possibly due to the fall on the train stairs. On cross-examination, he testified that at the time the claimant fell down the train stairs, she felt knee pain. The doctor testified that he only received an accident history concerning a fall down stairs.

In his initial report, dated October 22, 2011, Dr. Schwartz, the claimant's physician specializing in physical medicine and rehabilitation, diagnosed left lumbosacral radiculopathy with underlying herniated discs, left hip derangement with underlying labral tear, left knee derangement with underlying meniscal tear, and left foot derangement with probable ligamental tears. Dr. Schwartz provided a history of a February 21, 2011, work-related accident and found a causal relationship between that accident and claimant's injuries.

Dr. Schwartz testified via deposition on March 9, 2012. He stated that he first treated the claimant on October 22, 2011, and that she complained of persistent low back pain, with numbness and tingling into the left leg, and persistent pain in the left hip, knee, and foot, which caused her to walk slowly, with a limp. The doctor testified that the claimant provided him with a history that on February 21, 2011, while working as a housekeeper, she entered a room, lost her footing on the smooth ceramic surface, slid across the floor, lost her balance, fell abruptly to ground, mainly onto her left side, and experienced pain to the left side lower back, left hip, knee, and foot. Dr. Schwartz stated that the claimant did not mention a prior fall on stairs while walking toward a train and that the claimant denied any injuries prior to the accident. The doctor also testified that the claimant did not tell him about being prescribed medication for problems with the right side of her body. Dr. Schwartz testified that he was relying on the claimant's history when he causally related her injuries to the work accident of February 21, 2011.

The parties submitted written summations and in a reserved decision filed on November 1, 2012, the WCLJ found that the claimant did injure herself at work on February 21, 2011, when she slipped and fell on a wet tile floor. Therefore, the WCLJ established the claim for work-related injuries to the low back, left leg, left hip and left foot.

In a notice of decision filed on May 14, 2012, the WCLJ: (1) made awards from June 13, 2011, at the temporary total disability rate of $668.17 per week, "less DB lien, reimbursement to DB carrier"; (2) made awards from August 9, 2011, to December 27, 2011, at the temporary total disability rate of $688.17 per week; (3) held in abeyance the period from December 27, 2011, to December 29, 2011; (4) found no compensable lost time from December 29, 2011, to May 9, 2012, and; (5) awarded an attorney's fee of $2,000.00.

The carrier sought administrative review of both decisions, arguing that there is insufficient credible evidence to establish the claim.

LEGAL ANALYSIS

The carrier filed an application for Mandatory Full Board Review arguing that there is insufficient credible evidence to establish the claim, including the fact that the earliest medical reports reference non-work-related injuries and that treating physician, Dr. Hosny, was not given a history of a work accident.

"'[T]o be compensable under the Workers' Compensation Law, [an accidental injury] must have arisen both out of and in the course of employment' (Matter of Thompson v New York Tel. Co., 114 AD2d 639 [1985]; see Workers' Compensation Law § 10) . . . Accidents arising 'in the course of' employment are presumed to arise 'out of' such employment, and this presumption can only be rebutted by substantial evidence to the contrary (see Workers' Compensation Law § 21; Matter of Van Horn v Red Hook Cent. School, 75 AD2d 669 [1980])" (Matter of Keevins v Farmingdale UFSD, 304AD2d 1013 [2003]). "While Workers' Compensation Law 21(1) indeed provides a presumption of compensability, such provision does not completely relieve a claimant from the burden of demonstrating that the injuries allegedly sustained arose out of and in the course of his or her employment" (Matter of Lewis v NYS Dept. of mental Retardation & Developmental Disabilities, 257 AD2d 813 [1999]).

In the present matter, claimant reported to her employer that she fell at work on February 21, 2011, and was experiencing pain in her left hip and upper leg on the day the accident occurred, and there is no evidence in the record to suggest that the fall did not occur. While claimant did not seek treatment for those injuries until June 2011, more than three months after her fall, she credibly testified that she did not seek medical treatment immediately because she was taking vicodin and hydrocodone for osteoarthritis on her right side, and therefore her left side was not initially painful. Although it is unclear from the record why, when she did finally receive treatment, claimant initially failed to provide her treating physicians with a history of a work-related injury, there is no doubt that the February 21, 2011, accident occurred.

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 was present when claimant testified and was able to observe her demeanor, found her to be credible.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the injuries for which claimant seeks benefits are causally related to her February 21, 2011, accident.

CONCLUSION

ACCORDINGLY, the WCLJ decisions filed on April 9, 2012, and May 14, 2012, are AFFIRMED. No further action is planned by the Board at this time.