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Case # G1409597
Date of Accident: 04/24/2015
District Office: NYC
Employer: Anheuser-Busch Distributors
Carrier: Indemnity Ins. of N America
Carrier ID No.: W112502
Carrier Case No.: B660901703000101609
Date of Filing of Decision: 02/07/2018
Claimant's Attorney: George Poulos Esq.
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 10, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant sustained a work-related accident on April 24, 2015.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority reversed the WCLJ and established the claim, finding that the claimant sustained injuries out of and in the course of employment on April 24, 2015.

The dissenting Board Panel member would have affirmed the WCLJ.

The carrier filed an application for Mandatory Full Board Review on May 5, 2017, arguing that the Board Panel majority failed to specify any error in fact or law made by the WCLJ to justify reversing the WCLJ decision. The carrier asks that the claim be disallowed.

The claimant filed a rebuttal on June 5, 2017, arguing that the Board Panel majority's findings and decision should be upheld.

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

FACTS

By a C-3 (Employee Claim) filed on November 10, 2015, the claimant alleged injuries to his right shoulder, right side ribs and right elbow as a result of a work-related accident that occurred on April 24, 2015, when a bay door of a truck struck him on his right shoulder. The C-3 indicates the claimant notified the employer in writing of the injury and that a coworker witnessed the accident.

On November 10, 2015, the Board received an "Injury Investigation Worksheet" dated April 24, 2015, signed by the claimant, which alleged injuries to the claimant's right shoulder, right elbow and right side of ribs. The report indicates the claimant's supervisor was notified on the date of the accident.

In a report dated April 13, 2016, the claimant's treating physician, Dr. Vlattas, indicated the claimant reported right side shoulder pain. Dr. Vlattas noted he had been treating the claimant for separate injuries which occurred on February 17, 2015, and for injuries that occurred on September 20, 2014. Dr. Vlattas diagnosed right shoulder sprain/derangement with impingement, right elbow contusion with olecranon bursitis and right rib strain, resulting from claimant's April 24, 2015, accident. Dr. Vlattas prescribed physical therapy and ordered x-rays for the shoulder and elbow.

By a decision filed June 29, 2016, the WCLJ found prima facie evidence for injuries to the right shoulder, right elbow, right hip and right ribs, noted the carrier controverted the case, directed the carrier to produce an independent medical examination (IME) within 45 days, directed depositions of the claimant's and carrier's medical consultants within 60 days and continued the case.

On August 23, 2016, claimant was examined by the carrier's medical consultant, Dr. Polavarapu. In his report, Dr. Polavarapu indicated that the claimant's thoracic spine, left shoulder and right elbow were normal, but for the right shoulder, the range of motion for abduction was 130 degrees (180 normal), internal rotation was 60 degrees (80 degrees normal) and external rotation was 70 degrees (90 degrees normal). Dr. Polavarapu diagnosed thoracic spine sprain/strain/contusion, resolved, right shoulder sprain/contusion, resolving, and right elbow sprain/strain/contusion, resolved. Dr. Polavarapu found a moderate disability, provided a 20 pound lifting restriction, and recommended physical therapy twice per week for eight weeks for the right shoulder. Dr. Polavarapu additionally opined there was a causal relationship between the claimant's injuries and the accident of record.

At a hearing on September 6, 2016, the claimant testified that he was injured at work on April 24, 2015, when he was in a truck, and the cage fell down on his right shoulder, causing him to fall down and also injure his right elbow and right hip. His coworker, the driver of the truck, saw him on the floor after the accident. After he finished his route that day, he reported the accident to his supervisor, who entered the report into the system. Someone in the employer's office helped him complete the report. He did not notice the report was not signed by his supervisor.

On cross-examination, the claimant testified he first noticed the report was not signed about six months after the accident but he did not ask anyone to sign it. He did not go to the doctor the day he was injured, continued to work full duty, and was still working and did not lose any time because of the injury. The injury report indicating he injured his right ribs was incorrect as he injured his right hip. He had never injured his right elbow or right shoulder prior to the accident of April 24, 2015.

By a decision filed September 9, 2016, the WCLJ continued the case for the testimony of claimant's supervisor and the employer's witness.

Dr. Vlattas was deposed on November 9, 2016, and testified that he initially treated the claimant for the injuries of record on April 13, 2016, although he had previously treated the claimant for other injuries. Claimant complained of right shoulder pain and stiffness and elbow pain, but his ribs and hip were improved. MRI results from the right shoulder revealed effusion, labrum tear and tendinosis of the rotator cuff tendons. He last examined the claimant on September 29, 2016, and he recommended the claimant see an orthopedic surgeon, continue home exercise, ice and take over the counter pain medication. He had also treated the claimant for a left shoulder injury that occurred on September 20, 2014, and for a knee injury that occurred on February 17, 2015. The claimant was taking pain medication for his other injuries, which would have also helped the pain for the injuries associated with the accident of record.

On cross-examination, Dr. Vlattas testified that he treated the claimant for the left shoulder from April 2015 to November 2015, and the claimant never reported an injury to his right shoulder. MRI results indicated a labral tear, which typically results from a traumatic event rather than a degenerative issue, although the tendinosis could be degenerative, and the claimant had effusion which was consistent with inflammatory changes in the shoulder. The claimant had the start of arthritis in his shoulder but it could have been the result of a traumatic event. The claimant has bursitis in his elbow which was caused by a traumatic event, and Dr. Vlattas confirmed he based his opinion concerning causal relationship on the claimant's history of the accident. The claimant had an injection to the left shoulder on June 26, 2015.

At a hearing on November 17, 2016, a claims analyst for the employer testified that she first learned about the claimant's injury from the Workers' Compensation Board. She asked employees if they knew about the injury, but no one was aware of it. When an injury is reported, the supervisor immediately reviews an investigative form with the employee, and inputs the form into the system. No one else can input the form into the system, and the report is delivered to the regional safety manager. The claimant's supervisor at the time of the alleged injury no longer worked for the employer. On cross-examination, the witness testified she never spoke to the coworker who claimant alleges witnessed the accident in his C-3. At the conclusion of the hearing, the WCLJ found the employer's witness was more credible than the claimant and disallowed the claim. That finding was reflected in a decision filed November 22, 2016.

The claimant filed an application for administrative review arguing that the carrier's medical consultant found causal relationship and the employer presented no evidence that an accident did not occur.

LEGAL ANALYSIS

"The Board 'is the sole arbiter of witness credibility' (Matter of Hammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252 [2009]; accord Matter of Richman v NYS Unified Ct. Sys., 91 AD3d 1014 [2012])" (Matter of Wiess v Mittal, 96 AD3d 1175 [2012]).

Here, claimant consistently represented the mechanism of injury. First, the Injury Investigation Worksheet indicated the claimant was injured when the bay door came down on his right shoulder and caused him to fall to the ground. According to the C-3, "the bay door of truck came down and hit me on the right shoulder and I fell on right side." The IME-4 indicates the claimant reported to Dr. Polavarapu, the bay door came down onto his right shoulder. The claimant testified "the truck's cage was not locked and so it fell down and hit my shoulder. I fell to the floor and hit my elbow and my hip." Also, Dr. Vlattas credibly testified that the claimant's injuries were consistent with a trauma instead of degenerative injury, and the claimant was taking pain medications for his other injuries which would have helped the pain associated with the right shoulder and elbow injuries.

The claimant testified that he informed his supervisor of the accident the day it occurred, that a person in the office assisted him in completing the Injury Investigation Worksheet, and that a coworker saw him on the ground immediately after the accident. However, the employer did not present any of the coworkers that claimant identified in order to dispute the claimant's testimony.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant suffered injuries to his right shoulder and right elbow on April 24, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed November 22, 2016, is REVERSED. The claim is established for injuries to the right elbow and right shoulder. No further action is planned at this time.