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Case # G0388117
Date of Accident: 12/06/2010
District Office: NYC
Employer: Cucina and Company
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 24401337957
Date of Filing of Decision: 11/01/2013
Claimant's Attorney: Polsky, Shouldice & Rosen, 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 January 11, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the injury to the claimant's foot was an accidental injury which arose out of and in the course of the claimant's employment.

The Workers' Compensation Law Judge (WCLJ) found that the injury to the claimant's right foot and right leg was work-related and established the claim.

The Board Panel majority found that the evidence in the record does not support the establishment of the claim for work-related injuries to his right foot and right calf. The Board Panel majority reversed the WCLJ's decision and disallowed the claim.

The dissenting Board Panel member would have affirmed the WCLJ's decision.

The claimant filed an application for Mandatory Full Board Review on February 11, 2013.

The carrier filed a rebuttal on March 12, 2013.

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

FACTS

This is a controverted claim for injuries to the claimant's right foot and leg, which allegedly occurred on December 6, 2010, when a box of soda fell from a shelf that the claimant was stocking and struck his right foot.

In a medical report dated December 23, 2010, Dr. Spiegel noted that the claimant presented to the emergency room on December 18, 2010, and that upon examination the claimant was diagnosed with gangrene and cellulitis of the right foot and calf. The claimant's right foot was amputated.

In a medical report dated January 13, 2011, Dr. Shen indicated that the claimant's right leg was amputated below the knee.

In a C-3 (Employee Claim) dated March 17, 2011, the claimant indicated that on December 5, 2010, he was employed by the employer as a "delivery and stock room helper." According to the claimant, on December 5, 2010, he was "bringing down boxes of soda from a shelf," when a "box fell from the shelf striking [his] right foot." The claimant stated that his right foot later became infected resulting in the amputation of his right leg below the knee. The claimant indicated that accident was unwitnessed and that he provided notice of his injury to the employer on December 9, 2010.

In a C-4.2 (Doctor's Progress Report) dated July 26, 2011, Dr. Spiegel indicated that the date of the claimant's injury/illness was December 5, 2010. Dr. Spiegel did not indicate that the claimant's injury was work-related. In the attached December 18, 2010, surgical report, Dr. Spiegel wrote that "[t]he patient is a 62-year-old male with no medical follow-up in the past, who presented to the Emergency Room with severe diabetic right foot infection with gangrene of the skin and large amount of pus pouring from multiple sight and cellulitis to the knee."

During a hearing on August 2, 2011, the claimant testified with the use of interpretation services. The claimant testified that he had been working for the employer restaurant for about 18 years before injuring himself on December 6, 2010. He indicated that he has not worked since December 9, 2010, because of his injury. According to the claimant, on December 6, 2010, he was removing a box of soda from a shelf when the box of soda fell on his foot. The claimant testified that he didn't think much of the incident at the time, but that he had some pain the following day and that his foot began to swell two days later. According to the claimant, he provided notice of his injury to his manager on December 9, 2010, when his manager noticed him limping. The claimant testified that while his last day of work was December 9, 2010, he did not go to the doctor until "probably five, six days later" (Hearing Minutes 8/2/11, pg. 5). On cross-examination the claimant indicated that he does not know why the hospital records show that he was injured on December 5, 2010, or why the records do not indicate that the injury happened at work. The claimant stated that he provided the hospital with the same information that he provided during his initial testimony. The claimant stated that he did not file a claim for short term disability; however, the claimant indicated that he received disability benefits. In addition, the claimant admitted that he told a co-worker that he had a second job; however, the claimant stated that he did not actually have a second job and that he only told his co-worker that he had a second job because his co-worker wanted him to work more than eight hours and he did not want to work extra hours.

During the hearing on August 2, 2011, the person claimant identified as his manager testified that he is the Vice President of Operations for the employer, that he has worked for the employer for 33 years, and that he has been the Vice President for the company for the last 25 years. The witness indicated that he was only informed of the claimant's injury "three or four months ago," and that he was not told of the injury during the week in which it allegedly occurred (id. at 15-16). The witness testified that at the time that he was not aware why claimant stopped working for the employer, as the claimant did not report to him. The witness further testified that he does not remember seeing the claimant limping. During the week of December 6, 2010, the claimant never informed him that he had injured himself at work. He did not tell the claimant to see a doctor, and he does not remember having any conversation with the claimant about an injury to his foot. According to the witness, if the claimant would have told him that he injured himself at work, he would have told the claimant to file a report with the manager for workers' compensation.

During the hearing on August 2, 2011, a delivery employee for the employer testified that he has been working with the claimant since 2006. The witness testified that during the last week claimant worked for the employer, claimant was fine when he left work on Friday, but that when he saw the claimant on Monday the claimant had a problem with his foot. The witness further testified that he did not see the claimant injure his foot at work and that the claimant never told him that he injured his foot at work. According to the witness, the claimant told him that he had a second job on numerous occasions. On cross-examination, the witness testified that he noticed that the claimant had a problem with his foot when he first saw the claimant on the morning of December 6th, but admitted that he could not remember what time it was when he first saw the claimant that morning.

At the conclusion of the testimony on August 2, 2011, the carrier noted that the claimant failed to appear for his scheduled appointment with its medical examiner, and renewed its request to cross-examine the claimant's treating doctor.

During a deposition on September 14, 2011, the claimant's treating physician, Dr. Spiegel, testified in accordance with her medical reports. Dr. Spiegel testified that she is a general surgeon and that she examined the claimant on December 18, 2010. According to the doctor, she first encountered the claimant in the emergency room and she did not discuss the history of the claimant's injury until he was in the operating room. Dr. Spiegel testified that in the operating room the claimant told her that he did not remember any trauma to his foot. The doctor indicated that the claimant denied any past medical history; however, Dr. Spiegel noted that it didn't appear that the claimant saw a doctor on a regular basis. The doctor testified that, according to her notes, the patient denied "any pain in the foot or trauma" (Spiegel Deposition 9/14/2011, pg. 7). According to Dr. Spiegel, there was no x-ray or MRI taken of the claimant's foot prior to the amputation. Dr. Spiegel testified that the claimant's diabetes was not being treated prior to December 18, 2010, and that at the time the claimant was unaware that he had diabetes. Dr. Spiegel further testified that diabetes alone does not cause gangrene. According to Dr. Spiegel, people with diabetes usually develop gangrene as the result of an injury. Dr. Spiegel testified that claimant's condition on December 18, 2010, was "not inconsistent" with claimant having suffered a trauma to his foot two weeks earlier, "but like I said, my history - he did not relate that information to me, if he did have a trauma" (id. at 15-16).

In a Notice of Decision filed on September 20, 2011, the WCLJ found that the injury to the claimant's right foot and right leg was work-related and established the claim.

LEGAL ANALYSIS

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]).

In the present matter, the WCLJ, in his decision issued after the parties' summations, explained his reasoning in establishing the claim as follows:

"I heard the claimant's testimony and the lay witnesses' testimony, and I've read Dr. Spiegel's deposition. The claimant testified credibly that he had an accident. He was moving soda and a six pack fell on his foot, that it happened on December 6th. He didn't pay much attention. He just kept working. The claimant wasn't aware at the time that he had diabetes and wasn't particularly concerned, didn't think it was a serious injury. He did say that a coworker manager noticed that he was limping and asked about him, and the claimant did eventually go to the hospital. Dr. Spiegel found that he had gangrene in his foot, and she did testify that gangrene in a diabetic's foot is usually caused by some sort of minor injury, something falling on the foot, a blister, something falling, from a shoe, some very minor injury, which is clearly something that could be overlooked. Especially someone who wasn't aware they had diabetes might not think they had a serious injury. So based on the lay testimony and the medical testimony, I'll establish the case..." Hearing Minutes 9/15/11, pp. 7-8.

The claimant worked for the employer restaurant for over 17 years. The employer witnesses denied knowledge of an accident, but it is undisputed that the claimant was suffering from an injury to his foot on December 6, 2010. Claimant's co-worker testified that when he saw claimant on December 6, 2010, claimant was limping. Claimant's co-worker speculated that claimant's injury had occurred prior to his arrival at work that day, but he admitted that he did not recall what time he first saw claimant on that morning, and that he could have been out on a delivery when claimant arrived at work. On December 9, 2010, claimant ceased working. However, he did not go to the hospital until December 18, 2010. By that time, his undiagnosed diabetes had caused the minor injury to become gangrenous, such that emergency surgery was required to amputate the right leg below the knee. Claimant testified that he told the hospital personnel how the injury happened, and he did not know why the hospital records did not reflect that.

In addition, Dr. Spiegel testified that diabetes alone does not cause gangrene, a minor injury was most likely the trigger for the gangrene, and that such injury likely happened approximately 2 weeks prior to the December 18, 2010 operation.

Therefore, the Full Board finds that claimant's injuries arose out of and the course of his employment and therefore establishes this claim for an accidental injury to the claimant's right foot and right leg.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed September 20, 2011, is AFFIRMED. No further action is planned by the Board at this time.