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Workers' Compensation Board

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Case # G1233940
Date of Accident: 11/01/2014
District Office: NYC
Employer: Department of Correction
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: W0721483243
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Bronnberg & Henriquez PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 11, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim should be amended to include the right knee.

The Workers' Compensation Law Judge (WCLJ) amended the claim to include the right knee.

The Board Panel majority affirmed with the WCLJ.

The dissenting Board Panel member would have disallowed the amendment of the claim for the right knee.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on September 12, 2016, arguing that the claim should not be amended to include the right knee because the claimant failed to prove the right knee injury was causally related.

The claimant did not file a timely rebuttal.

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

FACTS

The claimant, a New York City corrections officer, filed a C-3 on April 26, 2015, alleging that on November 1, 2014, he injured his back and both knees while restraining an inmate.

The earliest medical report in the record is a C-4 (Doctor's Initial Report) based on a March 2, 2015, examination by the claimant's treating physician, Dr. Mian. In the report, Dr. Mian noted the claimant reported work-related injuries to both knees and his back as a result of an accident that occurred on November 1, 2014, when both knees hit the rail guard as the claimant was restraining an inmate.

By a decision filed September 4, 2015, the claim was established for the back and left knee, prima face medical evidence was found for the right knee, and the case was continued.

At a hearing held on October 21, 2015, the claimant testified that he injured his right knee on November 1, 2014, during an uprising at Riker's Island while he was restraining an inmate. The claimant testified he went to the clinic where he reported the right knee pain, and he also completed an incident report. A copy of the incident report was entered into evidence (doc. #253872129), and was shown to the claimant who verified his signature on the incident report. The incident report is dated November 1, 2014, and notes injuries to claimant's left knee and back sustained while attempting to place flex handcuffs on an inmate, but makes no mention of an injury to the right knee. After hearing the claimant's testimony and reviewing the incident report, the WCLJ established the claim for the right knee, finding that claimant's physician diagnosed the right knee injury within a reasonable period of time from the work accident. By Notice of Decision dated October 26, 2015, the WCLJ amended the claim for the right knee.

The SIE requested administrative review of the WCLJ's decision, arguing that claimant had failed to prove that he sustained a causally related right knee injury. Claimant filed a rebuttal arguing that the WCLJ's decision was supported by the record.

LEGAL ANALYSIS

"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])" (Matter of Jones v New York State Dept. of Correction, 35 AD3d 1025 [2006]; see also Matter of Ridgeway v RGRTA Regional Tr. Serv., 68 AD3d 1219 [2009]).

Here, the claimant testified that he hurt both his knees and his back as a result of the work accident that occurred on November 1, 2014. However, the claimant also testified he completed and signed the incident report on the same day as the accident, and reported the right knee pain to the clinic. However, the claimant recorded injuries only to his left knee and back on the incident report. Four months later, the claimant reported to his physician that he also injured his right knee. The claimant's testimony is not corroborated by the incident report he completed and signed on the same day as the accident, and the claimant provided no explanation for the discrepancy between his testimony and the incident report he completed. As such, the claimant's testimony that he also injured his right knee is not credible.

Therefore, the Full Board finds that the preponderance of the evidence does not support amending the claim to include the right knee.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 26, 2015, is MODIFIED to find that claimant did not sustain a causally related right knee injury. That decision is in all other respects affirmed. No further action is planned by the Board at this time.