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Case # G0728574
Date of Accident: 12/15/2012
District Office: NYC
Employer: Personal Touch Holding Corp
Carrier: Guarantee Insurance Company
Carrier ID No.: W101883
Carrier Case No.: 7776021120000318
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Joseph A. Romano Law Offices
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 15, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 15, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant experienced an accidental injury arising out of and occurring in the course of employment on December 15, 2012.

The Workers' Compensation Law Judge (WCLJ) found that the claimant did have a work-related accident on December 15, 2012.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant was not credible and the work-related accident she claims did not happen, and would reverse the WCLJ's finding that the claimant had a work-related accident on December 15, 2012.

In its application for Mandatory Full Board Review filed on July 11, 2016, the carrier asserts that the claimant's testimony that she was sexually assaulted at work was not credible. The carrier then asserts that even if the alleged assault occurred, it would not be work related because being sexually assaulted is not part of claimant's job description.

No timely rebuttal was received.

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

FACTS

Claimant, a home health aide, filed a C-3 (Employee Claim) on April 5, 2013, alleging that on December 15, 2012, she was sexually assaulted by a male patient at his residence and injured her back trying to escape. The carrier controverted the claim, contending in its Pre-Hearing Conference Statement that "No sexual assault occurred. Moreover, the nature of her employment did not create a hazardous or dangerous condition. In fact, claimant abandoned her patient after being permitted to take a break following trash disposal."

The record contains a December 16, 2012, medical report that showed compression fractures of the T11, T12, L1 and L3 vertebrae.

The claimant testified that she was assigned by the employer to work for the client on December 15, 2012. The claimant had only been working for this employer for three weeks, but had been working as a home health aide for years with other agencies. The claimant testified that the patient's apartment was in the Bronx. When she arrived, the client rushed her into his apartment in a very aggressive manner. The claimant explained that her job is to assist clients with cooking, bathing, dressing and light house cleaning. The claimant arrived at the client's apartment at 8:17 A.M. and planned on being there for eight hours. After she entered the apartment, the client, who was walking, locked the door to the apartment. The claimant told the client he would have to clean his own genital area during the sponge bath because he can use his hands, and the client became aggressive. The claimant testified that she became scared and wanted to leave the apartment. The claimant tried to take out the trash but the apartment door was jammed shut, and the client called her into the bedroom. The claimant went into the client's bedroom and sat down in a chair beside the bed. The client then pulled down his pants, exposed himself and told her to give him a sponge bath with baby wipes. The client then told the claimant to manipulate his genitals with her hand until he ejaculated, and the claimant complied because she was afraid of him. The client then pulled the claimant into his bed, lifted her shirt up, pulled down her pants and fondled her. The claimant told the patient to stop and he became aggressive, so she convinced him to stop by asking him to wait until the next day. The claimant put her clothing back on and the client told her to make him lunch, which she did. The client fell asleep after he ate, and then the claimant fled the apartment through the kitchen window.

The claimant testified that she felt forced to engage in a sexual act with the client because she was afraid of him. The client was a 51 year old man, and she was alone with him. The sexual assault occurred at 9:30 A.M. After the assault, the claimant had to escape through the first floor kitchen window because the door to the apartment was jammed shut. The window was at least six feet above the ground, and as she was trying to go through the window she fell to the ground. The claimant laid on the ground for fifteen minutes before getting up and walking to the bus stop. After the incident, the claimant had her boyfriend call the employer to tell them about the incident. The claimant went to Bronx Lebanon hospital the day after the incident.

On cross-examination the claimant testified that she first saw the client when he was walking outside the apartment. The client walked normally without an assistive device. The client was very big, strong and seemed capable of caring for himself. The claimant testified that the client locked the door after they entered the apartment. The client said he would open the door for her at the end of the day after she was unable to open it to take out the garbage earlier. The claimant testified that the door was jammed shut. The claimant testified that she could not get her cell phone to make a call because it had no signal. After she left the client's apartment she contacted the employer from the bus and told them that the client let her go early. She admitted that she lied to the employer because she was in shock. When asked if the client threatened her, the claimant testified that after explaining she would not wash his genitals because he can use his hands he said, "what do you think I'm going to rape you." The claimant testified this scared her because she was alone with the client in his apartment.

The claimant's client testified that he has been in his apartment for five years, and he never noticed the door becoming jammed shut. He is confined to a wheelchair because he had a knee replacement that caused peripheral artery disease, which makes it so he cannot stand for long. He cannot walk and can only ambulate in a wheelchair. He has needed a home health aide for seven years, and used the claimant's employer to provide him with services on December 15, 2012. His personal care plan includes having the home health aide run errands, cook three meals, assist with bathing, bedding, medications, as well as light cleaning and laundry. The client explained that he was bathed in bed because his shower did not work. On December 15, 2012, he was in bed when the claimant arrived; the door was unlocked so that the claimant could get in. The claimant was at his apartment for two hours on December 15, 2012, and only bathed him, changed his depends, and fed him breakfast. The client denied having any type of sexual interaction with the claimant. The client never demanded that the claimant manipulate his genitalia, nor did she do it voluntarily because he is unable to obtain and maintain an erection. He testified that he was asleep when the claimant left the apartment, and he never saw her open the door.

On cross-examination, the client confirmed that he lived alone in a one bedroom apartment. The client admitted he can stand up briefly from the wheel chair, but he cannot walk. The client insisted he had neuropathy in his left hand because of diabetes, but acknowledged he was holding his cell phone with his left hand. The client admitted he dressed himself on the day of his testimony. The client asserts that he leaves his apartment unlocked overnight. Client later admitted on further cross-examination that he can walk short distances without assistive devices. He admitted that he can use a television remote control and cell phone.

The employer's workers' compensation supervisor testified that she did not know the claimant because she (the witness) was not hired until April 14, 2014. The witness testified that the employers' records indicate that claimant contacted the employer on December 15, 2012, at 2:45 P.M. and said the client released her early. After receiving this message, the employer contacted the client, who said that he was asleep and did not know the claimant had already left. The employer's records indicate that the claimant reported the accident by phone on December 16, 2012, and she alleged that she hurt her back jumping out of the client's window.

Detective Crowley testified that she is a Special Victims Unit detective for the New York Police Department. The claimant contacted her at 1:00 P.M. on December 16, 2012, and alleged that the client sexually assaulted her. The detective testified that no arrests or charges were made because the sexual assault was deemed to be unfounded. The detective testified that she determined that a sex crime did not occur because the claimant consented to the activity. However, because of department procedure, Detective Crowley could not provide the details which led her to reach the conclusion that claimant's sexual assault allegation was unfounded.

The WCLJ stated on the record at the hearing on September 10, 2015, that he found the claimant's testimony to be most credible and that her injury was compensable. By a decision filed September 15, 2015, the WCLJ found that claimant "had a work related injury to the back."

The carrier requested administrative review of the WCLJ decision.

LEGAL ANALYSIS

"'[T]o be compensable under the Workers' Compensation Law, [an accidental injury] must have arisen both out of and in the course of employment' (Matter of Thompson v New York Tel. Co., 114 AD2d 639 [1985]; see Workers' Compensation Law § 10) . . . Accidents arising 'in the course of' employment are presumed to arise 'out of' such employment, and this presumption can only be rebutted by substantial evidence to the contrary (see Workers' Compensation Law § 21; Matter of Van Horn v Red Hook Cent. School, 75 AD2d 669 [1980])" (Matter of Keevins v Farmingdale UFSD, 304 AD2d 1013 [2003]).

Pursuant to Workers' Compensation Law (WCL) § 21(1), an assault that occurs in the course of claimant's employment is "presumed to have arisen out of the employment, absent substantial evidence that the assault was motivated by purely personal animosity" (Matter of Rosen v First Manhattan Bank, 84 NY2d 856 [1994] [citation omitted]). An injury that is the result of workplace assault will be compensable so long as there is any nexus, however slender, between the motivation for the assault and the employment (Matter of Baker v Hudson Valley Nursing Home, 233 AD2d 608 [1996], lv denied 89 NY2d 813 [1997]).

In this case the claimant's testimony is more credible than the client's testimony because he contradicted himself with regard to his capacity to walk, and he misrepresented his capacity to use his hands. The WCLJ who was present when the witnesses testified and was able to observe their demeanor, found claimant to be credible, and the client not to be credible. 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]).

Finally, the carrier's contention that even if the assault occurred then it would not be work related is wholly without merit based on the body of case law concerning workplace assaults.

Therefore, the preponderance of the evidence supports a finding that the claimant sustained a work-related accident.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed September 15, 2015, is AFFIRMED. No further action is planned by the Board at this time.