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Case # G1421104
Date of Accident: 12/21/2015
District Office: Hauppauge
Employer: The Long Island Home
Carrier: Arch Indemnity Insurance Co.
Carrier ID No.: W036885
Carrier Case No.: 188169484001
Date of Filing of Decision: 03/24/2017
Claimant's Attorney: Sharmine Persuad, Esq.
Panel: Kenneth J. Munnelly


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 October 4, 2016.


The issues presented for Mandatory Full Board Review are:

  1. whether the carrier has rebutted the Workers' Compensation Law (WCL) 21(1) presumption that the claimant's injury arose out of her employment; and
  2. whether the Workers' Compensation Law Judge (WCLJ) properly precluded video surveillance from being introduced into evidence for the purpose of proving that the claimant had violated WCL § 114-a.

In a decision filed on March 3, 2016, the WCLJ found that the claimant had established accident and notice. In a decision filed on April 18, 2016, the WCLJ established the case for a causally related injury involving the right knee and found no violation of WCL 114-a, given the preclusion of the video surveillance evidence.

The Board Panel majority reversed both WCLJ decisions and disallowed the claim on the ground that the carrier rebutted the WCL 21(1) presumption that the claimant's injury arose out of and in the course of her employment. The majority further found that the issue related to the video surveillance was moot in light of the disallowance of the claim.

The dissenting Board Panel member would have affirmed both WCLJ decisions and established the claim for a causally related right knee injury.

The claimant filed an application for Mandatory Full Board Review on October 24, 2016, arguing that the carrier proffered insufficient evidence to rebut the WCL 21(1) presumption.

The carrier filed a rebuttal on November 14, 2016.

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


By a C-3 form (Employee Claim) filed on January 4, 2016, the claimant, a certified nursing assistant (CNA), indicated that she was "just walking" at work on December 21, 2015, when her "right leg gave out" and she could not walk. The claimant indicated that she did not remember having another injury to the same body part. On December 31, 2015, the carrier filed a form SROI-04 (Subsequent Report of Injury - Denial) with regard to the claimant's December 21, 2015, injury. The carrier's denial included "no accident arising out of the course of employment."

On December 31, 2015, the claimant was examined by her treating physician, Dr. Lippe, who diagnosed the claimant with a right knee sprain and found the claimant to have a total temporary impairment. Dr. Lippe described the claimant's injury as "New." Dr. Lippe's findings were documented in a C-4 form (Doctor's Initial Report) filed on January 12, 2016.

On January 28, 2016, a medical report from Dr. Lippe's pre-accident examination of the claimant was also filed with the Board. According to this report, which was prepared on December 15, 2015, the claimant presented with a new injury, pain in her "lower legs" (id. at p. 1). The report documents the claimant's right leg pain as a "7" out of "10" and states that the pain had been present for four days. Dr. Lippe noted that the pain was greater in the right leg and caused the claimant to have difficulty walking.

In a decision filed on February 8, 2016, the claim was designated to be transferred to the special part for expedited hearings pursuant to WCL 25(3)(d) and 12 NYCRR 300.34 and/or 300.38. The WCLJ found prima facie medical evidence for the right knee. The parties' pre-hearing conference statements (PH-16.2 forms) do not mention the existence of any surveillance video.

The carrier's consultant, Dr. Kelman, examined the claimant on February 8, 2016. In his examination report, Dr. Kelman diagnosed the claimant with right knee pain that is not causally related to the December 21, 2015, incident. In support of his opinion regarding causal relationship, Dr. Kelman noted that the claimant's pre-existing conditions included "right knee [degenerative joint disease] and a prior history of right knee/leg pain." In addition to his physical examination, Dr. Kelman relied on several medical records to form his opinion, including an MRI report of the claimant's right knee (dated December 28, 2015), showing "[d]egenerative lateral and medial meniscus tears"; Dr. Lippe's medical reports; and medical notes from Dr. Hussain, dated December 21, 2015.

At a hearing held on February 29, 2016, the claimant testified that she was working as a CNA on December 21, 2015. She was walking in the main lobby of the nursing home, returning to her work station following a cigarette break, when she was injured. She was "just walking and [her] leg just went out." She stated that she did not completely fall down, but stopped her fall by grabbing a table. According to the claimant, the receptionist and a security guard witnessed the accident. She reported the injury to two supervisors and sought medical attention on the same day. She did not step on anything, trip over anything, and was not carrying anything at the time of her fall. On cross examination, the claimant was asked whether she sought treatment for her right knee prior to the December 21, 2015, incident, to which the claimant responded, "Yes." The claimant later clarified that she had made appointments with Drs. Lippe and Hussain prior to the accident date because her "leg" was bothering her.

In a decision filed on March 3, 2016, the WCLJ found accident and notice, and continued the case to consider the issue of causal relationship. The claimant's average weekly wage was set at $685.16. The parties were directed to depose Drs. Lippe and Kelman.

In an application for administrative review filed on March 22, 2016, the carrier requested that the March 3, 2016, WCLJ decision be rescinded and the claim disallowed on the ground that there was no accident arising out of and in the course of employment. In support, the carrier noted that nothing at the claimant's workplace caused her to slip, trip, or fall, and the claimant had a pre-existing right knee condition, as evidenced by Dr. Lippe's December 15, 2015, report.

In rebuttal, the claimant contended that the WCLJ decision should be affirmed because the carrier failed to proffer substantial evidence to rebut the WCL 21 presumption that her accident arose out of and in the course of her employment.

On March 24, 2016, during the pendency of the carrier's administrative appeal, Dr. Kelman was deposed. He stated that he examined the claimant on February 8, 2016, and diagnosed her with right knee pain that was not causally related to the accident. Dr. Kelman testified that his opinion of no causal relationship was based on three grounds: First, the MRI scan performed one week after the accident indicated that the claimant has degenerative arthritis of the right knee, which "undoubtedly predated the injury." Second, there was "no real mechanism of injury." Third, there is a prior history of right knee and leg pain documented in Dr. Lippe's notes dated December 15, 2015. Dr. Kelman found no orthopedic causally related injury and that further treatment was unnecessary.

Dr. Lippe was deposed on March 30, 2016. He testified that he saw the claimant on December 15, 2015 - prior to the accident - for "bilateral burning pain in both her lower legs," but not specifically for her knees (Deposition Transcript, Dr. Lippe, 3/30/16, p. 13). On December 31, 2015 - following the accident - he examined the claimant for right knee pain and diagnosed her with a sprain of the right knee and a tear of the medial meniscus of the right knee (see id. at p. 8). He stated that he did not know what caused the claimant's knee to give out (see id. at p. 16). He testified that he found the claimant's right knee injury to be causally related to her workplace accident based on the fact that the claimant was walking at work when her knee buckled (see id.).

At a hearing held on April 13, 2016, the carrier began questioning the claimant with regard to the December 21, 2015, incident. After asking several questions, the carrier advised the claimant that it had obtained a video of the incident. The carrier later alleged WCL 114-a, arguing that the claimant's testimony was inconsistent with the video. The WCLJ noted that the matter was subject to a pre-hearing conference and pre-hearing statement, but the carrier did not indicate the existence of a video or make any request for a lay witness to authenticate the video. The WCLJ therefore declined to consider the video in connection with the issue of causal relationship. Following testimony and summations, the WCLJ found causal relationship and established the case per the medical record as a whole and the WCL 21 presumption. The WCLJ also found no WCL 114-a violation. These findings were memorialized in a decision filed on April 18, 2016.

In an application filed on May 13, 2016, the carrier also sought administrative review of the April 18, 2016, WCLJ decision, requesting that the claim be disallowed and the Board subject the claimant to sanctions pursuant to WCL 114-a for making false statements. In the alternative, the carrier asked the Board to restore the case to the trial calendar for further development of the record, including review of the surveillance video insofar as it relates to causation.

In rebuttal, the claimant argued that the carrier had sufficient time to develop the record and present evidence, but failed to note the existence of the video surveillance in the SROI form filed on December 31, 2015; in the pre-hearing conference statement; at the hearing held on February 3, 2016; or at the hearing held on February 29, 2016. The claimant therefore maintained that the WCLJ correctly found no violation of WCL 114-a and properly precluded the carrier from producing the surveillance video.


Causal Relationship

For an injury to be compensable it must both occur in the course of the employment and arise out of that employment (see WCL 10). The injury must have been received while the employee was doing the work for which he or she was employed in order to find that it was in the course of employment (see Malacarne v City of Yonkers Parking Auth., 41 NY2d 189 [1976]). If the claimant's accidental injury occurred in the course of his or her employment, the claimant is entitled to the WCL 21(1) presumption that the injury also arose out of that employment (Matter of Andrews v Pinkerton Sec., 306 AD2d 655 [2003]). To rebut the presumption, the employer must submit substantial evidence that the accident was caused by something not related to work (Matter of Keevins v Farmingdale UFSD, 304 AD2d 1013 [2003]; Matter of Scalzo v St. Joseph's Hosp., 297 AD2d 883 [2002]).

If there is insufficient evidence for the Board to make a finding as to the cause of the fall, from eyewitness testimony, the claimant's testimony, or medical evidence, then the presumption is not rebutted, and the injury is compensable (Matter of Grimaldi v Shop Rite Big V, 90 AD2d 608 [1982]; Matter of Musicus v Broadway Pastry Shop, Inc., 81 AD2d 723 [1981]). An unexplained accident is the equivalent of an unwitnessed one (Matter of Fallon v National Gypsum Co., 53 AD2d 745 [1976]). Even if some evidence to rebut the presumption is produced, the Board must find it credible before the presumption is deemed rebutted (Matter of Cargain v Poritzky's Meat Co., 58 AD2d 907 [1977]). As such, an "unexplained" injury will not be found "idiopathic and not compensable," absent "compelling evidence" to rebut the presumption (Matter of Andrews v Pinkerton, 306 AD2d 655 [2003]).

In this case, there is no dispute that the claimant's fall occurred during the course of her employment on December 21, 2015, and as a result the claimant is entitled to the WCL 21(1) presumption that her injuries also arose out of her employment. The burden of proof therefore shifted to the carrier to produce substantial evidence that the claimant's injuries did not arise out of her employment.

The carrier seeks to rebut the WCL 21 presumption by alleging that the claimant's pre-existing condition (degenerative arthritis) caused her to fall. This explanation is unable to rebut the presumption because the carrier has not drawn a direct, non-speculative link between the claimant's alleged condition and her fall (see e.g. Matter of Oathout v Averill Park Cent. Sch., 142 AD3d 749 [2016]).

Dr. Lippe's pre-accident medical report (dated December 15, 2015) addresses only the claimant's bilateral leg pain and makes no reference to any knee pain or pre-existing knee condition. Indeed, Dr. Lippe's post-accident report accompanying the December 31, 2015, C-4 form, describes the claimant's knee injury as "[n]ew." Moreover, at the time of her December 15, 2015, examination, the claimant complained of a "bilateral burning" sensation in her lower legs. However, the claimant did not allege that a similar sensation precipitated her fall on the date of the accident. Although the claimant testified on cross examination that she sought treatment for her knees prior to the December 21, 2015, accident, she later clarified that she sought treatment for her legs, and references her visit with Dr. Lippe who, as stated above, makes no reference to the claimant complaining of any knee pain.

Although the carrier's consulting physician, Dr. Kelman, found no causal relationship, he was unable to proffer an alternative cause for the claimant's fall. In contrast, Dr. Lippe unambiguously stated that the claimant's knee injury was work related insofar as her knee buckled while she was at work. Further, although Dr. Kelman noted that the claimant's MRI shows degenerative arthritis, he did not explain whether or how that condition would have caused her fall. Accordingly, the carrier proffered insufficient evidence to rebut the WCL 21(1) presumption.

Accordingly, the WCLJ properly applied the WCL 21(1) presumption to find that the claimant's injury arose out of and in the course of her employment.

Admissibility of Surveillance Video

The filing of a pre-hearing conference statement (PH-16.2 form) by the parties is required by 12 NYCRR 300.38(f), which sets forth the timeframe and the particulars of such filing. According to 12 NYCRR 300.38(f)(2)(viii), the pre-hearing conference statement "shall include" a statement that, if discovery has not yet been fully completed, what further discovery is necessary. In addition, Board Rule 12 NYCRR 300.38(f)(3) requires each party to attach to its pre-hearing conference statement "any and all ... documents that the party intends to use at the hearing(s) ... insofar as they are not already a part of the electronic case file..." Further, 12 NYCRR 300.38(f)(4) provides, in part, that "filing by the insurance carrier of a materially incomplete statement shall result in a waiver of defenses to the claim," and that a carrier's failure to include with the pre-hearing conference statement a copy of any document not in the electronic case file which the carrier had in its possession or could have reasonably obtained "shall constitute a waiver of the right to introduce such document in the case." However, "[t]here shall be no waiver if the [WCLJ] finds, based on the affidavit of the insurance carrier's legal representative (or if the insurance carrier does not have a legal representative, then by the insurance carrier), that the conduct at issue was due to good cause and the insurance carrier exercised good faith and due diligence" (12 NYCRR 300.38[f][4]).

The instant case was transferred to the special part for expedited hearings, and as such was governed by WCL 25(3)(d), 12 NYCRR 300.34 and 300.38, including the Board rules governing pre-hearing conference statements. Nevertheless, the carrier did not note the existence of the video, nor list any witness related to the video, on the SROI or on the pre-hearing conference statement. The carrier therefore waived its right to introduce the video into evidence (see 12 NYCRR 300.38[f][4]). Although the carrier argues that it did not know about the existence of the surveillance video prior to the April 13, 2016, hearing, it did not file an affidavit attesting that it had a good cause for failing to acquire the video at the time the pre-hearing conference statements were filed, or that it exercised good faith and due diligence in obtaining the video, as directed by Board Rule 300.38.

Accordingly, the WCLJ properly precluded the video surveillance evidence. As such, there is no evidence on which the carrier can seek sanctions under WCL 114-a.


ACCORDINGLY, the WCLJ decisions filed March 3, 2016, and April 18, 2016, are AFFIRMED. No further action is planned by the Board at this time.