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Case # G0473546
Date of Accident: 07/27/2011
District Office: NYC
Employer: New York Insulation Inc
Carrier: Federal Insurance Company
Carrier ID No.: W080006
Carrier Case No.: 3346581
Date of Filing of Decision: 11/01/2013
Claimant's Attorney: Stanton, Guzman & Miller LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board at its meeting on September 17, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel memorandum of decision filed December 10, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant sustained a work-related back injury.

The Workers' Compensation Law Judge (WCLJ) established this claim for a work-related back injury.

The Board Panel majority reversed the WCLJ's decision, finding that there was insufficient credible evidence to show that the claimant suffered a work-related back injury due to repetitive lifting in the course of his employment.

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

In its application for Mandatory Full Board Review, the claimant asserts that the Board Panel majority improperly disallowed the claim and the WCLJ's decision establishing the claim should be affirmed, as the WCLJ is the sole and final arbiter as to the credibility of witnesses.

In its rebuttal, the carrier argues that the Full Board should adopt the Board Panel majority, and that the Board Panel majority properly credited the opinion of the employer's lay witness indicating that the claimant did not have a work-related back injury due to repetitive lifting.

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

FACTS

In a hand-written C-3 (Employee Claim) dated August 26, 2011, and filed with the Board on September 21, 2011, the claimant alleged that he injured his back on July 17, 2011, lifting objects while working for the employer as an asbestos handler at a school in Long Island. The C-3 indicates that claimant first received medical treatment on August 2, 2011, at Elmhurst Hospital.

In a typed C-3 dated August 31, 2011, and filed with the Board on September 21, 2011, the claimant alleged that he sustained an injury to his low back on July 9, 2011, bending over and lifting bags of asbestos while working for the employer as an asbestos handler at a school in Long Island. This C-3 indicated that claimant first received medical treatment on July 27, 2011, at the emergency room Elmhurst Hospital.

In a C-2 (Employer's Report of Work-Related Injury/Illness) filed with the Board on December 9, 2011, the employer indicated that the claimant hit his head on a pipe and complained of a pre-existing, non-work-related back pain on "approximately" July 8, 2011, while performing his duties as an "asbestos hazardous handler."

The carrier filed a C-669 (Notice to Chair of Carrier's Action on Claim for Benefits) on December 21, 2011, indicating that it was not disputing a claim for an injury to the claimant's head.

The record does not contain any records from Elmhurst Hospital. However, the record does contain a C-4 (Doctor's Initial Report) by Dr. McGee, based on an August 31, 2011, examination. In his attached narrative report, Dr. McGee listed the date of accident as July 17, 2011, and indicated that claimant "was working on asbestos and carrying heavy loads. Back pain started a little and progressively worsened. He went to Elmhurst ER." Dr. McGee opined that claimant injured his back at work lifting heavy loads.

The claimant, through an interpreter, testified at a hearing held on December 23, 2011, that he is not presently working and last worked on August 19, 2011. He stopped working as of that date because of back pain. The claimant sustained an injury to his back while working at a school in Long Island. Claimant testified that he was charged with lifting heavy boxes, which caused pain in his back. Claimant stated that his injury was due to repetitive lifting of these heavy boxes and not due to an "actual accident" to his back. He denies having sustained an injury to his head. The claimant started working for the employer in 2005 as a full-time asbestos removal handler, and stated that he never previously had any issues with his back. The bags that he was responsible for lifting were very heavy as they contained asbestos and any material contaminated by asbestos, and he was responsible for lifting 150 to 250 bags every day. Two co-workers witnessed his work lifting heavy bags. He was never was involved in a motor vehicle accident in which he injured his back, and there was no cause for his back pain other than his work responsibilities. He never took time off from work or requested light duty prior to 2011 due to back pain. He did not previously treat for a back condition. He earned $1,200.00 a week working for the employer. He came under the care of Dr. Davy in August 2011.

On cross-examination, the claimant testified that he mentioned to his direct supervisor at one point that had a backache, but he continued working. His back injury started "more or less" on July 17, 2011, while removing asbestos from pipes. When asked to address the discrepancy between the dates of accident on these two C-3 forms, the claimant stated that the August 31, 2011, type-written C-3 was completed in error by his attorney's office, as the true date of accident was July 17, 2011. When asked to clarify, the claimant reiterated that his work-related back injury occurred at work on July 17, 2011. He was working at a school in Massapequa, Long Island at the time of his accident. The claimant's last day of work was August 19, 2011, and he has not worked for the employer or elsewhere since, he has not sustained any new accidents and has not applied for unemployment. The claimant testified that he never treated for his back with any medical providers before going to Elmhurst Hospital in August of 2011 and did not work elsewhere while employed by the employer.

The employer's field supervisor also testified at the December 23, 2011, hearing, that he held that position on July 17, 2011, that he supervised the claimant, and the claimant was employed as an asbestos handler doing the physical work of removing asbestos. Claimant worked for the employer for a period of three-to-four years. He confirmed that the claimant would remove approximately 150 bags of asbestos on a daily basis, but as of July 17, 2011, the claimant was removing pipe insulation that was not heavy, and weighed only five to ten pounds. The witness became aware that the claimant had a pre-existing back condition when he saw the claimant wearing a back pack and asked him the reason for doing so and the claimant confirmed that he had a back condition, but needed to keep working. The claimant was injured at a school job at 245 Union Ave in Uniondale, not is Massapequa, and the job started on July 16, 2011. When asked to state the job location the claimant was working at on July 17, 2011, the witness testified that no work was done on that date as it was a Sunday, and work was not done on Sundays on this job because it was a public work contract and there was an attempt by the employer to limit overtime. He did not believe that the claimant worked on another employer project on that date. The claimant's last day of work on the project was July 25, 2011. He worked on a different project on August 18, 2011, but stopped work with the employer after that date. The claimant informed the witness on July 16, 2011, that his back was "messed up," but he did not go into any further detail and did not specifically indicate that his back condition was due to his work. The witness reiterated that the job the claimant was working on starting on July 16, 2011, entailed removing bags of asbestos that weighted only 5 to 10 pounds. The claimant informed him that he injured his head, but did not request any medical assistance or time off.

On cross-examination, the employer's field supervisor testified that a C-2 is generally completed immediately after the employer is informed of a work-related injury. The C-2 that was filed with the Board on December 7, 2011, indicates that the claimant provided notice of his injury to the employer on July 12, 2011. Although the witness did not have the claimant's personnel file, he indicated that the claimant was an employee for a period of about three to four years, but that it was possible that he was an employee since 2005. He continued to let the claimant work in July of 2011 despite having visible discomfort due to his back pain, as claimant explained that he needed the money. He never asked the claimant how he injured his back. In the time that claimant worked for him prior to July of 2011, he had never requested time off due to a back problem. The previous project the claimant worked on at a high school in Massapequa, involved removing asbestos from pipe located in crawl spaces, and this work involved a lot of crawling and bending. The claimant, however, was able to work full time, five days a week on this job.

In a decision filed on December 29, 2011, the WCLJ found that the claimant sustained a work-related back injury, that his average weekly wage was $1200.00 (without prejudice), directed the carrier to produce a C-240 (Employer's Statement of Wage Earnings) within 45 days, denied the carrier's request to depose the claimant's treating physician, found the proper date of accident to be July 27, 2011 (based on the medical report from Elmhurst Hospital indicating first treatment on that date), found no medical evidence of disability from July 28, 2011 to August 31, 2011, and awarded the claimant benefits from August 31, 2011 to December 24, 2011, and continuing, at the temporary total disability rate of $772.96.

LEGAL ANALYSIS

Although Workers' Compensation Law § 21(1) affords claimants the presumption that unwitnessed or unexplained accidents that occur in the course of employment also arise out of that employment, "that statute does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, ... employment" (Matter of Bond v Suffolk Transp. Serv., 68 AD3d 1341 [2009] [citations omitted]). Thus, the presumption cannot be used to show that an accident occurred (Matter of Fedor-Leo v Broome County Sheriff's Dept., 305 AD2d 760 [2003]). In this regard, a credibility determination must be made, and the Board is not bound to credit the testimony of the claimant (Matter of Wood v Colonial Tavern & Rest., 22 AD2d 984 [1964], lv denied 15 NY2d 486 [1965]).

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 (DiDonato v Hartnett, 176 AD2d 1102 [1991]).

The Full Board finds, upon review of the evidence of record, that the claimant suffered a compensable back injury, and that this work-related injury occurred on July 16, 2011, and not on July 27, 2011, as found by the WCLJ. While the record contains some inconsistencies regarding the precise location and date the injury occurred, the preponderance of the evidence in the record supports a finding that claimant sustained an accidental injury arising out of and in the course of his employment. It is uncontroverted that claimant performed heavy physical labor in his job as an asbestos removal worker. Claimant credibly testified the he was required to repetitively lift bags of removed asbestos material, and that he injured his back while engaged in that activity in a school in Long Island. While the injury may not have occurred at a specified instant in time, according to claimant's testimony, his symptoms manifested themselves on a particular date, after repetitively lifting bags of asbestos material. Claimant testified that the date his injury occurred was Sunday, July 17, 2011. While the employer has produced evidenced that no work was done by the employer on that date, it appears to concede that work was performed by the claimant at an asbestos removal project in a school on Long Island the previous day, July 16, 2011. Although the record does not contain any hospital records, the record indicates that claimant was treated in the emergency room of Elmhurst Hospital within weeks of the injury, and began treating with Dr. McGee soon thereafter. In his initial report, Dr. McGee noted a history of claimant "working on asbestos and carrying heavy load," and complaining of back pain that "progressively worsened." Dr. McGee found a causal relationship between claimant's employment and his back injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on December 29, 2011, is MODIFIED to find that claimant's injury occurred on July 16, 2011, but is in all other respects affirmed. The case is continued.