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Case # G0945272
Date of Accident: 12/03/2014
District Office: Buffalo
Employer: Allegany-Limestone Central
Carrier: Allegany-Limestone CSD
Carrier ID No.: W801880
Carrier Case No.: ACACW-14-0473
Date of Filing of Decision: 12/02/2016
Claimant's Attorney: Lewis & Lewis PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 18, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 25, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant sustained a right small toe injury arising out of and in the course of her employment.

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant sustained a compensable right small toe injury.

The Board Panel majority reversed the WCLJ's decision and disallowed the claim.

The claimant filed an application for Mandatory Full Board Review on April 25, 2016.

The self-insured employer (SIE) filed a rebuttal on May 23, 2016.

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

FACTS

The claimant, a cleaner employed by a public school district, alleges that she sustained a right small toe fracture on December 3, 2014, when a chair fell from a desk, landing on her toe. The SIE controverted the claim, alleging that the injury occurred several days earlier, outside of work.

Claimant was treated in the Olean General Hospital emergency room on December 3, 2014. According to the emergency room report, claimant stated, "I was at work cleaning a desk, when the chair fell over hitting my right pinky toe causing me to fall." The report stated, "Injury Description: Bruise is purple was sustained 30-60 minutes ago." X-rays were taken which revealed an incomplete fracture of the proximal phalange of claimant's right small toe.

In a C-4.2 report based on a December 5, 2014, examination, claimant's treating podiatrist, Dr. Chahal, found that the claimant fractured the fifth toe of her right foot and that a chair falling on her foot on December 3, 2014, was the competent medical cause of the injury. Dr. Chahal kept the claimant out of work between December 5, 2014, and December 29, 2014.

The SIE filed video evidence with the Board on April 6, 2015, which depicts the claimant: (1) entering the school on December 1, 2014, from outside of the building, (2) entering the school on December 1, 2014, from the inside of the building, and entering and exiting a room, and (3) entering the school on December 3, 2014, from outside of the building. The date/time stamp on the December 3, 2014, video indicates that the claimant arrived at school on that date at 2:02 PM.

The record was developed at a hearing held on April 13, 2015, with the testimony of the claimant, the claimant's neighbor, the claimant's landlord, the claimant's co-worker and the nurse at the elementary school claimant worked at.

The claimant testified that she has worked for the SIE as a cleaner for three years and that on December 3, 2014, she arrived for her 3:00 PM to 11:00 PM shift at approximately 2:10 PM and was having no issues walking at that time. She broke her right pinky toe at approximately 3:05 PM, when she bumped into a chair that was resting on the top of a desk, causing it to fall on her foot. Shortly after the accident, a co-worker came to her aid and summoned the school nurse. The nurse took her shoe and sock off and instructed the claimant to ice her foot. The claimant was then driven to the emergency room, where she was seen by Dr. Chahal. She indicated that she was not experiencing any pain in her right foot prior to the December 3, 2014, injury, but that she previously suffered an injury to her right foot. The claimant testified that she was not friendly with the neighbor who was scheduled to testify in this matter.

On cross-examination, the claimant stated that she had gone to the neighbor's house on December 1, 2014, for coffee, but that she did not recall borrowing a ladder to assist the neighbor with a project. The claimant again testified that she arrived at work on December 3, 2014, at around 2:10 PM, and not at 2:45 PM as indicated in the statement that she signed concerning the accident. The claimant indicated that she did not read this statement before signing it. The claimant started her shift by cleaning Room 137. She explained that the chairs were on top of the desks and that she bumped the desk causing the back of one of the chairs to fall on her right small toe. She estimated that the chair weighs 25 pounds. Upon further questioning by the SIE concerning the mechanics of the injury, the claimant indicated that she must have bumped the desk with her left leg, then stated that she was not sure which leg had hit the desk. Claimant stated that the chair hit only her pinky toe when it fell, and not other portions of her right foot. The claimant indicated that the injury occurred at 3:05 PM and estimated that it was a couple of minutes between the occurrence of the accident and the arrival of help in the form of a co-worker. She could not stand, so she was helped to her feet by the co-worker and taken to the nurse's office in a wheelchair. When the school nurse took her sock off, the claimant noticed that the small toe area of her right foot was swollen and black and blue. The claimant indicated that she has diabetes and artery disease and that this would explain why bruising occurred so quickly.

The claimant's neighbor testified that she was subpoenaed and her testimony at the hearing was not being provided voluntarily. The neighbor testified that the claimant used to come to her home all the time and usually for Sunday dinner. On November 30, 2014, the claimant came over for coffee and to help her change some light bulbs. The claimant brought a ladder with her. The claimant stumbled and hit the ladder with her right foot. When the claimant took her sock off to inspect her right foot, the neighbor observed that it was "all black." After injuring her foot, the claimant "had another cup of coffee." She saw the claimant the next day and claimant was concerned about whether she would be able to work. The neighbor testified that she joked with the claimant and indicated that she should blame her injury on the school. Upon her return from the emergency room on December 3, 2014, the claimant said to her, "you would have been proud of me. I was a good actress," apparently referencing that she had faked the injury on December 3, 2014, at the school. The neighbor testified that the claimant is presently nasty to her, possibly due to an incident in which the claimant nearly injured her dog when throwing ice off of her deck. The neighbor also testified to a strained relationship with her landlord, indicating that she does not talk to him, he does not do what he is supposed to and he talks to her "bad." The neighbor admitted to no other issues with any one in her building. At the conclusion of her direct testimony, the neighbor indicated that she had voluntarily disclosed her conversation with the claimant to the employer as "I didn't think it was right." She also indicated that claimant did not break her toe on the ladder, and that she actually broke her toe on her own steps going up the stairs.

The claimant's landlord testified that the neighbor is mentally ill, that he believes she has bipolar disorder and that she received assistance getting her apartment from an agency that assists those with mental illnesses. He stated that the neighbor has caused numerous issues with him and other tenants, and directly caused one tenant to move out. While the neighbor can be very warm and friendly at times, at other times "she can be the meanest lady you ever met." The landlord further testified that he has received a number of complaints from the neighbor about the claimant's dog, the way she parks her car and the loud manner in which she climbs her stairs. On cross-examination, the landlord testified that he did not know anything about the interactions between the claimant and the neighbor on November 30, 2014, and December 3, 2014, and that he was never asked to change any lightbulbs in the neighbor's apartment around that time.

The claimant's co-worker testified that he works at the same elementary school as the claimant, but that his shift starts at 9:30 AM. He was in the hallway at approximately 3:00 PM on December 3, 2014, when he was called into Room 137 by the claimant. He noticed that she was sitting on the ground, and that there was a chair laying on the ground as well. The claimant told him that a chair had fallen off the desk and hit her foot. On cross-examination, the co-worker noted that he could not recall if he had seen the claimant earlier in the day, and did not recall what her demeanor was like.

The school nurse testified that her appearance at the hearing was compelled by a subpoena and that she was not voluntarily testifying. She is a registered nurse who has been employed by the school district for 13 years. On December 3, 2014, at approximately 3:03 PM, she was summoned to the room in which the claimant was injured. She did not observe the chair as her main concern at that time was the claimant. She observed purple and black bruising of claimant's right baby toe. The nurse testified that minutes after the occurrence of such an injury, she would have expected to observe only a pink and swollen toe. The bruising that she observed would normally occur after about two days. The nurse testified that the claimant was very hostile and agitated after the accident and observed her swearing over the phone while speaking to her supervisor. The claimant at one point asked whether her injury would be covered under workers' compensation.

On cross-examination, the nurse testified that she was aware that the claimant was a diabetic, but was unaware that she had artery disease. The nurse indicated that her assessment concerning the claimant's bruising was not affected by this information.

In a reserved decision filed on June 9, 2015, the WCLJ established the instant claim for an injury to the right small toe and issued awards to the claimant from December 4, 2014, to December 29, 2014, at the temporary total disability rate. The WCLJ concluded that the issue distilled to one of credibility between the claimant and her neighbor, and that claimant's testimony was more credible and persuasive. The WCLJ found the claimant's version of events to be plausible and rejected the SIE's contention that the claimant injured herself on November 30, 2014, and then continued to work until December 3, 2014, when she staged the incident involving the chair. The WCLJ noted that the video evidence produced supports such a finding as it does not in any way depict the claimant with an altered gait prior to the occurrence of the injury.

LEGAL ANALYSIS

The claimant credibly testified that while at work on December 3, 2014, she sustained an injury to her right small toe when she bumped into a desk in the classroom she was cleaning, causing the chair that was sitting on top of the desk to fall on her right small toe. The claimant's version of events stayed relatively consistent throughout her testimony and was supported by subsequent testimony of her co-worker and the school nurse who were present at the school on December 3, 2014.

The testimony of the claimant's neighbor is not credible. The neighbor testified that the claimant was in her apartment on November 30, 2014, and stubbed her right toe on the ladder that she brought down to help change lightbulbs. However, near the conclusion of her direct testimony, the neighbor contradicted her earlier testimony, stating that the claimant's injury occurred while she was ascending her own stairs. The neighbor's lack of credibility is further demonstrated by the testimony of the landlord, who indicated that the neighbor was a mentally ill, troubled tenant who had multiple issues with other tenants, including the claimant, who she registered numerous complaints about. The neighbor's animus towards the claimant is also demonstrated by her own testimony that she had issues with the claimant.

While the SIE argues that the color of the bruising on the claimant's right small toe noted following the accident is inconsistent with an injury that occurred only minutes before, the only medical evidence proffered by the SIE on this issue was the brief testimony of the school nurse. The SIE presented no other evidence, medical or otherwise, supporting its position that black and blue bruising cannot occur within minutes of an injury. The SIE, in fact, did not produce an IME (on this point or others) and effectively waived the cross-examination of the claimant's Dr. Chahal, who opined that the claimant sustained a causally related right small toe injury on December 3, 2014, while working for the employer. The SIE also failed to refute the claimant's testimony that other maladies that she suffers from (diabetes and artery disease) could have accelerated the bruising process in her right toe. It is noted that the claimant's diabetic condition is confirmed in the medical evidence of record.

The video evidence in the file also supports the claimant's contention that she had not injured her right small toe prior to December 3, 2014. The video of the claimant entering the building on December 1, 2014, and on December 3, 2014, reflects that the claimant was under no distress and appeared to be walking normally, with an unaltered gait. The claimant's need for a wheelchair on December 3, 2014, and her subsequent need for CAM walker as prescribed by her physician, supports a finding that her injury occurred on December 3, 2014, and that her claim is compensable.

The SIE's theory of the case assumes that claimant fractured her toe outside of work on November 30, 2014, worked her entire shift as a cleaner on December 1, 2014, despite the fracture, and then two days later, on December 3, 2014, faked an accident at work. This scenario is simply implausible given the seriousness of claimant's injury and the video evidence from December 1, 2014, and December 3, 2014, showing claimant walking without distress prior to the accident.

Finally, while 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 (Matter of Di Donato v Hartnett, 176 AD2d 1102 [1991]). Here, the WCLJ who was present when the witnesses testified and was able to observe their demeanor, found the claimant to be credible.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant sustained a right small toe injury arising out of and in the course of her employment.

CONCLUSION

ACCORDINGLY, the WCLJ's reserved decision filed June 9, 2015, is AFFIRMED. No further action is planned by the Board at this time.