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Workers' Compensation Board

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Case # G1079565
Date of Accident: 04/09/2015
District Office: Hauppauge
Employer: The Arbors / Arcadia Management
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67920793
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Miller & Caggiano LLP
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 March 11, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant sustained an accidental injury arising out of and in the course of her employment.

The Workers' Compensation Law Judge (WCLJ) established the claim for a work-related back injury and made awards.

The Board Panel majority reversed and disallowed the claim.

The dissenting Board Panel member would affirm the establishment of the claim.

The claimant filed an application for Mandatory Full Board Review on March 24, 2016.

The carrier filed a rebuttal on April 21, 2016.

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

FACTS

On May 8, 2015, claimant, a housekeeper in an assisted living facility, filed a C-3 (Employee Claim) alleging that on April 9, 2015, she injured her back, neck and left leg when she was attacked by a resident and "hit a wall separator." The C-3 indicates that the injury occurred during the "AM," but does not indicate the specific time at which it occurred. According to the C-3, claimant first sought medical treatment for her injuries on April 23, 2015, at the Brookhaven Hospital emergency room.

The carrier controverted the claim, contending that claimant did not sustain an injury while at work. In its pre-hearing conference statement, the carrier indicated that it had video evidence that it intended to introduce into evidence.

The report of claimant's treatment at Brookhaven Hospital on April 23, 2015, states that claimant reported "back pain at work 1 week ago a resident pusher (sic) her & she is having lower back pain." The emergency room report also states that,

patient presents to the ER for complaints of low back pain following being at work yesterday. Patient states she works with the elderly at a home facility and was pushed back into a countertop along her low back. Patient states since then she has had continued pain across low back worse with movement.

Claimant's treating physician, Dr. Apazidis, submitted a C-4 (Doctor's Initial Report) based on a May 7, 2015, examination of the claimant. In the attached narrative report, Dr. Apazidis stated that claimant complained of back pain radiating into her lower extremities, left worse than right, for the last month, and that she fell at work on April 9, 2015.

At the hearing on July 13, 2015, when asked by the WCLJ, the claimant's representative confirmed that claimant was alleging that the accident occurred at approximately 9:00 a.m. on April 9, 2015. The WCLJ directed the carrier to provide claimant with a copy of the video evidence referenced in its pre-hearing conference statement and continued the case for testimony by the claimant and employer witnesses, and production of the video.

At a hearing on August 11, 2015, testimony was taken of the claimant, the employer's director of human resources and claimant's supervisor.

Claimant testified that she was injured at work between 10:30 and 11:00 a.m. on April 9, 2015. The WCLJ then stated on the record,

And we already had a discussion off the record that said that there was a gap in the film from 10:30 and 11:00 so I'll take it under advisement as the claimant was present during that discussion and was thereby coached on that information.

(Transcript, 8/15/15 hearing, p. 3).

Claimant testified that the injury occurred in Room 47, when a patient pushed her, causing her to fall to the floor. After the injury, she continued to clean other rooms. After leaving Room 47, she went directly to Room 50.

The employer's director of human resources testified that the hallways at the facility where claimant worked were under video surveillance. According to the witness, the employer's director of environmental services oversaw video surveillance "internally," but surveillance was "also managed by an outside company" (p. 13). The DVR's which recorded the surveillance were in the office of the director of environmental services.

Claimant's supervisor testified that on April 9, 2015, at around 1:00 p.m., claimant reported that at around 12:00 noon that day "the resident in Room 47 had shoved her into a pony wall and passed her a note stating something about stealing underwear" (p. 22). Claimant tried to report the injury to her earlier than 1:00 p.m. on April 9, 2015, but she [the supervisor] "was in a meeting at 12:00 when she [claimant] tried to page me on the talkie" (id.).

The parties appear to have stipulated that the video evidence produced by the carrier shows that: claimant was in the hallway where Room 47 is located at 11:55 a.m.; the resident left Room 47 at 12:06 p.m.; claimant entered room 47 at 12:07 p.m..; claimant walked out of Room 47 holding a note at 12:08 p.m.; and there were two DVD's and there is gap from 10:58 to 10:59 between the two DVD's.

The WCLJ established the claim for an accidental back injury, but specifically credited the testimony of the claimant's supervisor "with respect to what was related to her and the timeframe of the actual incident" (p. 24). The WCLJ stated that, "[w]e don't need to take the DVDs into evidence as the parties stipulated to the facts concerning the relevant portion of the same" (id.). The WCLJ then set claimant's average weekly at $347.08, found no medical evidence of disability prior to April 23, 2015, and made awards from April 23, 2015, forward at the temporary total disability rate of $231.39 per week. The findings and awards made at the August 11, 2015, hearing are reflected in a decision filed August 14, 2015.

The carrier requested administrative review of the WCLJ's decision, contending that the claim should be disallowed. The carrier pointed out that claimant's attorney had asserted at the July 13, 2015, hearing that claimant was alleging that the accident occurred at 9:00 a.m., but claimant later testified that the accident occurred between 10:30 and 11:00 a.m., after being advised that there was a gap in the carrier's video evidence during that time period. The carrier asserted that the parties had stipulated that the video evidence had shown that the resident who allegedly assaulted claimant left Room 47 at 12:06 p.m., claimant entered the room at 12:07 p.m., and claimant left the room at 12:08 p.m., and therefore the claimant and the resident had never been together in the room, and the injury could not have occurred as claimant alleges.

In rebuttal, the claimant requested that the WCLJ's decision be affirmed, arguing that the parties stipulated that there was a gap in the carrier's video evidence from 10:58 to 10:59, which "would fit the timeframe that [claimant] testified the incident occurred."

LEGAL ANALYSIS

At the hearing on July 13, 2015, the claimant's counsel clearly indicated that claimant was alleging that the accident occurred at approximately 9:00 a.m. on April 9, 2015. However, at the hearing on August 11, 2015, after being advised that there was a gap in the employer's video evidence from 10:30 to 11:00, claimant testified that she was injured at work between 10:30 and 11:00 a.m. on April 9, 2015. Claimant has failed to explain this inconsistency which undermines her credibility. Instead, in claimant's application for Mandatory Full Board Review, her representative suggests that the injury occurred between 10:58 a.m. and 10:59 a. m., as testified to by the claimant, and that the video evidence of claimant entering Room 47 at 12:07 p.m. shows claimant returning to the room more than an hour after the injury occurred to complete her cleaning. However, that scenario is not supported by claimant's own testimony, as claimant never stated that she returned to Room 47 after the injury.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant is not credible and that she did not sustain an accidental injury arising out of and in the course of her employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on August 14, 2015, is REVERSED. The claim is disallowed.