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Workers' Compensation Board

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Case # G0924091
Date of Accident: 09/30/2014
District Office: Syracuse
Employer: Chicago Bridge & Iron Company
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 2440203312
Date of Filing of Decision: 03/24/2017
Claimant's Attorney: Amdursky, Pelky, Fennell & Wallen
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on February 28, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 28, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant's left knee injury was causally related to a September 30, 2014, work-place accident, or a nonwork-related accident on November 13, 2014; and
  2. whether the claimant violated Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) concluded that the claimant did not sustain a new accident and did not violate WCL § 114-a.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant misrepresented the history of her accident in violation of WCL § 114-a.

The carrier filed an application for Mandatory Full Board Review on May 31, 2016.

The claimant filed a rebuttal on June 15, 2016.

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

FACTS

The claimant, a laborer, filed a C-3 (Employee Claim) on December 11, 2014, in which she alleged that she had twisted her left knee at work on September 30, 2014, "while carrying a 10 ft cheese gratings down 2 flights of stairs."

An Upstate University Hospital emergency department report dated November 13, 2014, indicates as follows:

Patient presents to the ED with complaints of left knee pain as a result of a fall that occurred this morning. Patient states she was carrying laundry up stairs when she fell, landing on her left knee, at which time she felt a sudden sharp popping sensation with severe pain that radiates to her ankle. She states she recently "twisted" her knee about 6 weeks ago, she had been applying ice and taking aleve with good relief until today. She states she has difficulty bearing weight due to pain with bending. She denies any redness, warmth in the joint, fever, chills, or prior knee injury.

In a medical report for treatment on November 17, 2014, claimant's treating physician, Dr. Smart, indicated that the claimant provided him with the following history:

The patient is a 54-year old woman, complaining of pain in her left knee since September 30, 2014. She states when she was at work she was carrying gratings that were about ten feet long down some narrow stairway. There were two flights of stairs. When she was going down one of them, she twisted the knee. Had a lot of pain at that time. Since has felt like the knee feels unstable. She worked for a few more days and then October 4, 2014, she was laid off. Since then, the knee has continued to really bother her. She cannot squat. It seems to be worse with stairs and just feels unstable. She has not done any therapy or cortisone. She currently on crutches, wearing a brace, taking anti-inflammatories.

In correspondence to Upstate University Hospital dated December 1, 2014, the claimant requested that the November 13, 2014, emergency department report be amended, noting that this report is "very crucial" to her workers' compensation claim. Claimant posited that the part of the report that indicates that she fell on her left knee at home was not accurate, and should be modified to indicate that she hurt her knee at work seven weeks ago.

In response, Upstate University Hospital sent correspondence to the claimant dated December 17, 2014, indicating that the treating medical provider was unable to agree to the claimant's request to amend the medical report as it is "complete and accurate in that it reflects the information she was told at the time when she interviewed you." The claimant was, however, informed of her right to submit a statement explaining her disagreement with the decision to deny the amendment, which would be made a permanent part of her record, along with the hospital's response to the claimant's submission.

In a decision filed on February 20, 2015, the WCLJ noted that the carrier does not contest that an accidental injury occurred on September 30, 2014, but held the establishment of the claim in abeyance "pending testimony in light of the conflict in history between the claimant and the medical records."

Claimant was examined by the carrier's consultant, Dr. Karpman, on March 24, 2015. In his report, Dr. Karpman indicates that claimant provided a history of twisting her left knee at work on September 30, 2014. Dr. Karpman diagnosed claimant with left knee meniscus tear, status post arthroscopic surgery, and concluded,

After review of claimant's file, taking a history and performing a physical examination it appears that the above-diagnosed injuries are causally related to the accident on 9/30/14. The claimant does not report any pre-existing conditions. The claimant does not report sustaining any subsequent injuries. If any additional information becomes available about any subsequent injuries I would be glad to review and make appropriate comment.

The claimant testified at a hearing held on April 7, 2015, that she sustained an injury to her left knee on September 30, 2014, while ascending stairs carrying ten foot metal scaffolds. She immediately felt pain down to her calf and into her foot and soreness, and walked to the break room in order to wrap her knee. The claimant completed an accident report and finished her shift. She iced and elevated her knee upon returning home and bought a knee brace. She knew that she only had a week left on the job with the employer and wanted to avoid going out of work. She reported to work the next day wearing the brace. The claimant's knee continued to be unstable and "wobbly." She could not bend her left knee and had difficulty going up and down stairs. Her knee would make "crackle and pop" noises when she got up from the sitting position, went up and down stairs, and if she turned wrong. She was laid off four days after the accident. The claimant did not seek medical care for her left knee until visiting the Upstate University Hospital emergency department on November 13, 2014. The claimant went to the emergency department after experiencing additional pain and popping in her left knee while ascending her stairs at home with a laundry basket. She was directed by her general practitioner to go to the emergency department as there would be orthopedic doctors there. She provided a history at the emergency department of sustaining an injury to her left knee six to seven weeks prior at work, and that she experienced additional pain and popping in her left knee while going up her stairs at home with a laundry basket. She never provided a history of falling on her knee, but indicated that she did provide a history of falling on her right knee four years ago after slipping on black ice. Claimant indicated that she was told she needed left knee surgery, although the report inexplicably indicates that she needs right knee surgery.

On cross-examination, the claimant testified that she continued her employment after the accident in light duty capacity until she was laid off later in October. She reiterated that she did not treat with a medical provider until going to the emergency department. She had no formal restrictions placed on her by a medical provider while in light duty. Her layoff had nothing to do with her disability. The claimant conceded that she did feel a pop in her left knee at home on November 13, 2014. She wrote to the hospital in an effort to get the history set forth in the emergency department report amended, but her request was denied after an investigation by the hospital. She treated with Dr. Smart on November 17, 2014. She was examined by the carrier's consultant, Dr. Karpman, at the end of March 2015. Claimant has had no other injuries to her left knee other than the one that occurred on September 30, 2014. She underwent left knee surgery on February 4, 2015, and has yet to be released to return to work by her doctor.

In a decision filed on April 10, 2015, the WCLJ directed the testimony of Dr. Smart and noted that the testimony of the carrier's consultant, Dr. Karpman, was waived by the claimant.

At a deposition held on April 27, 2015, Dr. Smart testified that he is an orthopedic surgeon, and that he first treated the claimant on November 17, 2014. The claimant provided a history of twisting her knee after carrying gratings down a narrow stairway at work, and developing pain. The claimant underwent an MRI on December 1, 2014, and he recommended surgery as a result of the findings on the MRI. The claimant had surgery on February 4, 2015. Upon performing the surgery, he discovered that the claimant's meniscus was intact. Initially, the claimant only provided him with the work-related history; it wasn't until later that claimant advised him of the history reflected in the emergency department report. He conceded that the history that the claimant provided to the emergency department could be consistent with the injury she sustained. Dr. Smart testified on re-direct, that it was not unusual for a patient to delay treatment like the claimant did in hopes that the condition would improve. It is also not unusual for a claimant with a knee injury to have trouble with stairs. Dr. Smart testified that it is not unusual for medical reports to contain mistakes.

On cross-examination, Dr. Smart conceded that the claimant's injuries could have either been from the September 30, 2014, incident at work, or the November 13, 2014, incident at home. Dr. Smart did say that he would have expected the claimant to seek some sort of medical treatment following the September 30, 2014, incident, and the fact that she did not seek treatment until after the fall at home on November 13, 2014, leads him to believe that this incident resulted in the more significant injury. It was more likely that the cause of the claimant's injury was the incident at home. Claimant was capable of returning to work in light duty as of March 13, 2015. His objective findings of November 17, 2014, were similar to those reached by the emergency department on November 13, 2014.

In a reserved decision filed on July 27, 2015, the WCLJ found accident, notice and causal relationship for the left knee, concluded that the claimant's testimony concerning the inaccurate history in the November 13, 2014, emergency department report to be credible, and found that the claimant did not make a material misrepresentation to Dr. Smart in violation of WCL 114-a. The WCLJ found no credible evidence of a new accident. The WCLJ found that the claimant was not attached to the labor market as of October 1, 2014.

The carrier requested administrative review, arguing that claimant violated WCL 114-a, that she should be permanently disqualified from receiving lost wage benefits, and that her medical treatment and lost time were not causally related to her work-related accident.

In rebuttal, claimant asked that the WCLJ decision be affirmed.

LEGAL ANALYSIS

Causal Relationship

The carrier does not contest claimant's allegation that she twisted her left knee on September 30, 2014, while at work. However, the carrier contends that claimant's left knee injury, which required treatment beginning on November 13, 2014, was causally related to an accident that claimant sustained at home on November 13, 2014, and not twisting her knee at work on September 30, 2014.

The claimant testified that she first treated in the hospital emergency department on November 13, 2014, and provided a history at the emergency department of sustaining an injury to her left knee six to seven weeks prior at work, and that she experienced additional pain and popping in her left knee while going up her stairs at home with a laundry basket. She denied providing a history of falling on her knee at home.

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]). Here, the WCLJ who was present when the claimant testified and was able to observe her demeanor, found the claimant to be credible. Therefore, despite the conflicting history reflected in the emergency department report, the Full Board finds that claimant credibly testified that she did not fall on her knee at home November 13, 2014.

The carrier's consultant, Dr. Karpman, found that claimant's left knee injury was causally related to her September 30, 2014, work-related accident. While claimant's treating physician, Dr. Smart, testified on cross-examination that claimant's disability may have resulted from the incident at home on November 13, 2014, that opinion was based on having been provided an incorrect history of claimant falling on her knee at home.

Therefore, the Full Board further finds that claimant did not sustain a new accident at home on November 13, 2014, and that her disability, need for medical treatment and lost time from work from November 13, 2014, forward are causally related to her September 30, 2014, work-related injury.

WCL § 114-a

"If for the purpose of obtaining compensation pursuant to [WCL § 15], or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In addition, as determined by the board, the claimant shall be subject to a disqualification or an additional penalty up to the foregoing amount directly attributable to the false statement or representation" (WCL § 114-a[1]).

When claimant was first examined by Dr. Smart on November 17, 2014, and when she was examined by the carrier's consultant, Dr. Karpman, on March 24, 2015, she provided only a history of a work-related accident on September 30, 2014, and made no mention of having an accident at home on November 13, 2014. The carrier alleges that this constituted a violation of WCL § 114-a. However, the Full Board finds that claimant credibly testified that she did not fall on her knee at home November 13, 2014, and that she did not make a material misstatement of fact to Dr. Smart, Dr. Karpman, or in her testimony before the Board.

Therefore, the Full Board finds that claimant did not violate WCL § 114-a.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed on July 27, 2015, is AFFIRMED. No further action is planned by the Board at this time.