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, duly filed and served on January 7, 2013.
The issue presented for Mandatory Full Board Review is whether the claimant sustained an accident arising out of and in the course of his employment.
In a reserved decision filed on May 2, 2012, the Workers' Compensation Law Judge (WCLJ) established the claim for work-related injuries to claimant's back.
The Board Panel majority affirmed the WCLJ's decision
The dissenting Board Panel member found that the claim should be disallowed as the credible evidence in the record does not indicate that the claimant injured his back at work while painting.
On January 28, 2013, the carrier filed an application for Mandatory Full Board Review.
On February 21, 2013, the claimant filed a rebuttal.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This is a controverted claim for injury to the claimant's back, which claimant alleges occurred on November 30, 2011, when he was kneeling down to paint a baseboard in the course of his employment as a painter.
In a Triage Assessment from Seton Health System dated November 30, 2011, the intake nurse noted that "Patient reports awoke with low back pain, history of pain after accident. States pain started to shoot down left leg...Patient AMB to triage with limp. States cannot lift foot up off of the floor."
A medical report from Seton Health-St. Mary's Hospital dated November 30, 2011, noted that the "Patient...states at 7am today, while at work painting in kneeling position, patient felt a knifelike pain in left lower back radiating down left leg with left leg numbness and left foot weakness." The report indicated that an MRI taken of the claimant's spine revealed a "very large disc protrusion at L4-L5, with a large extruded fragment and severe stenosis."
In a medical report dated November 30, 2011, Dr. Semenoff, a physician at Albany Medical Center, noted that the claimant reported a history of chronic back pain and that the claimant stated that on November 30, 2011, he experienced a stabbing pain in the lower left portion of his back and associated left foot numbness and left foot drop. Dr. Semenoff's medical report was attached to a medical report from Albany Medical Center dated December 1, 2012, which indicated that an MRI of claimant's spine revealed a "very large disc protrusion at L4-L5, with a large extruded fragment and severe stenosis."
In a medical report dated December 2, 2011, Dr. Thibodeau noted that the claimant reported a history of chronic back pain, and that the claimant stated that while he was working on November 30, 2011, he experienced:
"a sudden sharp pain in his lower back that felt like knife. Subsequently, he felt a sharp pain radiate from his left buttock all the way down the posterior aspect of his left leg into his foot. Subsequently, he developed a weakness of dorsiflexion of the left foot and started to walk with a limp secondary to a foot drop. He presented to an outside hospital for evaluation and there, they did an MRI which revealed a very large left-sided disk protrusion at the L4, L5 level with a large extruded fragment and severe stenosis."
During a hearing on March 28, 2012, the claimant testified that on November 30, 2011, he was kneeling on the ground while painting baseboards when he felt a sharp, stabbing pain in his left lower back. According to the claimant, a couple of co-workers, including his boss, heard him say "ow" (Hearing Minutes 3/28/12, pg. 7). The claimant testified that he told his boss that he felt "something weird in his back" and that he felt "a sharp pain" (id.). According to the claimant, he later told his boss that he needed to leave to go to the hospital. Claimant testified that he left the job site at approximately 1:30p.m., and that he went to St. Mary's Hospital where he was diagnosed with a herniated disc. Claimant further testified that he was transported to Albany Med for evaluation for surgery and that he saw a spinal surgeon, Dr. Semenoff. According to the claimant, he elected not to have the surgery and was taken out of work. The claimant testified that he has not been released to go back to work. The claimant acknowledged that he injured his back when he slipped and fell at work on January 6, 2009, but stated that the injury did not include a herniated disc (that injury is the subject of WCB #G0055805). The claimant denied injuring his back on November 29, 2011, while driving. On cross-examination, the claimant testified that he did not remember limping when he arrived to work on November 30, 2011. The claimant further stated that although a report from the emergency room dated November 30, 2011, indicated that the "patient reports that he awoke with low back pain," he didn't think that he woke up with pain (id. at 19). Claimant denied reporting to the emergency room that he was walking around and felt a pain in his back. Claimant indicated that some of the inconsistencies between the information contained in the emergency room report and his testimony was due to the fact that he was on IV and pain medications at the emergency room and "there was like tons of people coming in and asking me questions that day" (id. at 20). On re-cross examination, the claimant denied using an alias in the state of Florida to get around a child support lien.
During the hearing on March 28, 2012, claimant's co-worker testified that on the morning of November 30, 2011, he observed the claimant limping, and that the claimant told him that maybe he was limping because of the trip to Massachusetts the day before or maybe he pulled a muscle in his back. On cross-examination, the witness testified that on November 30, 2011, he had been working for the employer for seven years and had only worked with the claimant for about a month. According to the witness, the claimant was complaining of pain from the beginning of the day. The witness confirmed that the claimant was painting baseboards on the date of the alleged accident, and that the claimant was bent over, kneeling down to paint trim around the floor.
During the hearing on March 28, 2012, claimant's supervisor testified that he is the owner of the company that employed the claimant on November 30, 2011. The witness testified that on November 30, 2011, the claimant began complaining that he was experiencing back pain right after he got out of his car that morning. According to the witness, he and the claimant entered the house and the claimant indicated that his back was bothering him, but he didn't really know what he did to it. The witness testified that he did not hear the claimant say "ow,' but that the claimant was complaining all day that his back was bothering him and that his leg was going numb. The witness further testified that the claimant never mentioned that anything at work caused his back pain. According to the witness, he told the claimant to "go home early and go to the hospital" (id. at 43). On cross-examination, the witness confirmed that the claimant was painting baseboards on November 30, 2011, but stated that he did not know if the claimant was bent over or sitting down while he was painting.
During a deposition on March 29, 2012, Dr. Semenoff testified in accordance with his medical reports. Dr. Semenoff testified that he treated the claimant on November 30, 2011, when the claimant was hospitalized at Albany Medical Center.
During a deposition on April 18, 2012, Dr. Thibodeau testified in accordance with her medical report. Dr. Thibodeau testified that she saw the claimant in the emergency room at Albany Medical Center on November 30, 2011, and that she admitted the claimant to the hospital. Dr. Thibodeau testified that the claimant reported that he had felt a sudden sharp pain in his left low back while working on November 30, 2011. Dr. Thibodeau further testified that an MRI taken of the claimant's spine revealed a large left disc protrusion at L4-5. On cross-examination, Dr. Thibodeau opined that the history of chronic back pain noted in her report was different from the sudden sharp pain that the claimant experienced in his lower back which radiated into his left leg on November 30, 2011. Dr. Thibodeau further opined that this was a new presentation and that it was not likely that the herniated disc existed prior to November 30, 2011. Dr. Thibodeau acknowledged that driving and sitting could cause back pain, but noted that "they cannot cause weakness and inability to dorsiflex without some more significant problem" (Thibodeau Deposition 4/18/2012, pg. 18).
In correspondence to the WCLJ dated April 2, 2012, the representative for the carrier attached a "Child Support Enforcement Employee Information Verification letter" from the Florida Department of Revenue, which lists an alias for the claimant. In the correspondence, the carrier's representative noted that the claimant testified under oath that he had never used an alias to avoid paying a child support lien and that the attached Child Support Enforcement Employee Verification Letter should be taken into account when assessing the credibility of the claimant.
In a reserved decision filed on May 2, 2012, the WCLJ established the claimant's claim for work-related injuries to his back.
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 ), the credibility determinations of the WCLJ who heard the testimony are entitled to considerable weight (Di Donato v Hartnett, 176 AD2d 1102 ).
Here, the claimant testified as to the facts and circumstance surrounding his injury, and the medical records contained in the Board file support the history of the injury provided by the claimant. In addition, claimant sought immediate medical treatment and Dr. Semenoff and Dr. Thibodeau both indicated that the injuries sustained by the claimant were consistent with the description of the incident provided by the claimant. The WCLJ who was present when claimant testified, and was able to witness his demeanor, found him to be credible. Although the record suggests that the claimant may have lied about using an alias in the state of Florida to avoid a child support lien, the record supports a finding that claimant was truthful with respect to his claim for workers' compensation benefits.
Therefore, the Full Board finds that the claimant sustained an accident on November 30, 2011, in the course of his employment as a painter.
ACCORDINGLY, the WCLJ decision filed on May 2, 2012, is AFFIRMED. No further action is planned by the Board at this time.