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Workers' Compensation Board

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Case # G1107303
Date of Accident: 07/05/2014
District Office: NYC
Employer: White & Blue Group Corp
Carrier: Hereford Insurance Company
Carrier ID No.: W106884
Carrier Case No.:
Date of Filing of Decision: 01/25/2017
Claimant's Attorney:
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 on May 11, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant sustained a work-related injury on July 5, 2014.

The Workers' Compensation Law Judge (WCLJ) found that claimant was not credible, that he did not sustain a work-related injury, and disallowed the claim.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would reverse the WCLJ's decision and establish the claim because he found the claimant's testimony credible. The dissenting Board Panel member would also excuse the lack of timely written notice based on the claimant's testimony that he provided oral notice to the employer within 30 days of the incident.

In the pro-se claimant's application for Mandatory Full Board Review, he argues that he was injured at work, he should be compensated, and he should not be penalized for a written report that was filed a couple of days late.

In rebuttal, the carrier argues that the Board Panel majority's opinion should be affirmed because there was no accident arising out of and in the course of the claimant's employment and the claim is barred under Workers' Compensation Law § 18 as the claimant failed to provide timely notice of a work-related accident or incident.

The pro-se claimant filed a reply to the carrier's rebuttal and argues that the Board Panel majority decision should be reversed because he was assaulted at work, he made both verbal and written reports, and he should not be penalized.

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

FACTS

On July 29, 2014, the claimant filed Form C-3 (Employee Claim) with the Board. The form indicated that the claimant was a taxi cab driver and he was assaulted by another driver while working on July 5, 2014.

The carrier filed Form FROI-04-R3 (First Report of Injury Report-Denial) on October 9, 2014, controverting the claim based on various grounds, including no compensable accident, failure to report accident timely, and no causal relationship.

The record includes a Form MV-104 (Report of Motor Vehicle Accident) dated August 12, 2014, which indicates that on July 5, 2014, at 7:30 p.m., the claimant was at LaGuardia Airport, Terminal C, when he was assaulted by a "TLC agent."

The record includes a Form PA 3962 (Port Authority of NY and NJ Police Civilian Complaint Form) dated February 20, 2015, wherein the claimant alleged that on July 5, 2014, he was at LaGuardia Airport sitting in a taxi line lot between terminal C and terminal D when he was assaulted by a taxi dispatcher named "Boby." The claimant further alleged that the Port Authority Police did not arrest the dispatcher because he was a government employee.

The record includes a Verifone Driver Trip Log for the claimant's shift on July 5, 2014, 18:11 p.m. to July 6, 2014, 6:30 p.m.

The claimant testified at a hearing held on April 24, 2015, that on July 5, 2014, he was working for the employer, he had leased a cab, and he went to LaGuardia Airport. He went into the parking lot around 8:00 p.m. to wait for passengers and the dispatcher did not come right away. When the dispatcher came out, the dispatcher grabbed his neck, hit him, and hit him against a wall, injuring his shoulder. He called 911, the Port Authority Police came, he explained everything to the police, but the police did not arrest the dispatcher, and they threatened to arrest him. The police did not arrest the dispatcher because he was a city employee. He injured his shoulder very badly, he could not move his shoulder for one to two weeks, and he was unable to work after the incident. The claimant did concede that he finished his shift after the incident in severe pain because if he came back early, he would still have to pay for the full lease of the cab and he had not yet covered his expenses. He took ibuprofen for the pain and he first saw a doctor, Dr. Mian, on July 22, 2014. He did not go to an emergency room because he was unaware if his insurance was active. He verbally told his employer about the incident, but did not file a written report with his employer until August 12, 2014.

A supervisor for the employer testified on April 24, 2015, that the claimant did not notify the employer about the assault until about one month after it happened. The witness reviewed the claimant's trip sheet from July 5, 2014, and testified that the claimant dropped off a fare at 7:15 p.m. in Manhattan, then the trip sheet showed relief time engine off. His next fare started at 10:01 p.m., and he dropped off his last fare at 5:34 a.m. The trip sheet shown did not indicate that claimant went to LaGuardia Airport on July 5, 2014.

At the conclusion of the hearing, the WCLJ found that the claimant reported the accident late to his employer and the employer was prejudiced because it affected their ability to investigate the incident. The WCLJ noted that the claimant did not file a police report at the time of the incident and he did not see a doctor immediately. The WCLJ found that the claimant was not credible and disallowed the claim. These findings are reflected in an amended notice of decision filed April 29, 2015.

In his application for administrative review, the claimant argued that the claim should be established.

In rebuttal, the carrier argued that the WCLJ was correct to disallow the claim because the claimant's testimony was incredible, there was no documentation to substantiate the claimant's allegations of an assault, and the claimant conceded that no notice was given to the employer within 30 days.

LEGAL ANALYSIS

A review of the record in this matter indicates that there is no contemporaneous documentation to support the claimant's allegation of an assault because he did not file a police report at the time of the incident, he did not see a doctor immediately, nor have any witnesses been produced to corroborate claimant's contention that he was assaulted at work. The claimant was also inconsistent in recollecting who perpetrated the incident because he indicated on his Form C-3 (Employee Claim) that he was assaulted by another driver, however, he testified that he was assaulted by a dispatcher. In addition, the employer's trip log did not indicate that claimant went to LaGuardia Airport on July 5, 2014. 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]). A review of the record indicates that there is no compelling reason to disturb the WCLJ's credibility determination because the WCLJ was in the best position to assess the claimant's demeanor and credibility.

Therefore, the Full Board, upon review of the record and based upon a preponderance of the evidence, finds that the claimant's testimony was incredible and he was not injured in the course of his employment.

CONCLUSION

ACCORDINGLY, the amended Notice of Decision filed April 29, 2015, is AFFIRMED. No further action is planned by the Board at this time.