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Case # G1296017
Date of Accident: 04/09/2015
District Office: NYC
Employer: CMC Contracting LLC
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67939579
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Kelman Winston & Vallone PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed September 16, 2016.

ISSUE

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

The Workers' Compensation Law Judge (WCLJ) found that the claimant did not sustain an accidental injury arising out of and in the course of his employment.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would find sufficient evidence in the record to establish the claim for work-related injuries to the neck, back, right knee and left foot.

The claimant filed an application for Mandatory Full Board Review on September 27, 2016.

The carrier filed a rebuttal on October 24, 2016.

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

FACTS

A medical report from NHCAC, a clinic in New Jersey, dated April 10, 2015, reports "left leg discomfort since yesterday" and indicates left calf / leg pain because "some heavy iron/metal fell on his left leg at work yesterday." An x-ray of the left tibia/fibula diagnosed subcutaneous edema.

By a C-3 (Employee Claim) dated April 28, 2015, the claimant reported injuries to the left leg, left knee and right knee as a result of an accident that occurred on April 9, 2015, when stripping a ceiling "wood fell from the ceiling and landed on me."

By letter to the Board dated May 18, 2015, the employer's Human Resources Consultant wrote that the claimant had not reported an injury on April 9, 2015, or any subsequent date.

In a C-4 (Doctor's Initial Report) dated May 26, 2015, for an examination on April 29, 2015, the claimant's physician, Dr. Goldenberg, reported the claimant was injured as a result of "beams and plywood pieces falling from the ceiling onto the claimant's head, back, left leg which caused patient to fall down to the ground on his knees." Dr. Goldenberg reported that the claimant sustained injuries to his neck, back, right knee, left calf, left ankle and left foot. Dr. Goldenberg opined the claimant was 100% temporarily totally disabled, and ordered MRIs for the claimant's right knee and left calf.

By C-4.2 (Doctor's Progress Report) dated May 26, 2015, for an examination on May 13, 2015, Dr. Goldenberg ordered MRIs for the cervical spine, lumbar spine, right ankle, right calf and left ankle.

By SROI-04 dated June 16, 2016, the carrier controverted the claim, alleging the accident did not occur out of and in the course of employment, no causal relationship, no coverage, and failure to timely report accident.

A June 22, 2015, MRI of claimants right knee reported "status post work injury April 2013" and indicated small to moderate joint effusion and anterior subcutaneous edema.

A June 23, 2015, MRI of claimant's the lumbar spine reported "status post work injury 4/9/2014" and the findings included a straightening of the curvature of the lumbar spine with loss of the normal lordosis, and posterior disc bulges at L1-L2 and L5-S1.

In a decision filed July 8, 2015, the WCLJ found prima facie medical evidence (PFME) for the claimant's neck, back, right knee and left foot based on Dr. Goldenberg's C-4 dated April 29, 2015.

The carrier's consultant, Dr. Pittman, examined the claimant on September 30, 2015, and noted the claimant walked with a marked right limp, reported swelling on the right calf, a right hematoma over the medial head of the gastrox. Dr. Pittman diagnosed a traumatic rupture of the gastrocnemius of the right calf with pain, cervical sprain, resolved and lumbar sprain, resolved. Dr. Pittman opined based on the information reported that the claimant's injuries were causally related to the accident that occurred on April 9, 2015, found the claimant had a marked partial disability and indicated the claimant was capable of performing sedentary work without prolonged standing or walking.

At a hearing held on January 26, 2016, the claimant testified that on April 9, 2015, he worked for CMC Contracting, and at about 4:50 p.m., he was working with a co-worker, removing the ceiling, when "it came down and I ran but it still got me on my left foot, on my right knee and it kind of bring me down." He continued, "I was on a ladder and I kind of threw myself down because it was going to hit me on my head but it still got me on my foot and my right knee." The claimant clarified that it was a wooden beam, 14 feet long and 2 feet wide, that fell on him.

The claimant testified that he texted his foreman, on April 20, 2015, about his foot, his check and the payment of his medical bills. His foreman told him the medical bills would be paid. On April 20, 2015, the claimant and his wife met the foreman on Lexington Avenue and Third Avenue to pick up his check. The foreman told him to take his time, come back to work when he was ready, bring his medical reports, and they would take care of him. When he subsequently called the office, he was told there was no report of the accident and the claimant needed to call the foreman. When he realized the employer was not going to pay his medical bills at that time, he retained his attorney.

On cross-examination, the claimant testified he did not complete an accident report for his employer. The personnel at the clinic spoke English and a little Spanish, but they could see the claimant's knee was very swollen so they knew why he was there. The claimant clarified that he told the clinic that a piece of wood, not metal or iron, fell on him.

The employer's foreman testified that he was the claimant's direct supervisor, he was working with the claimant on April 9, 2015, and that the claimant never reported a beam fell on him.

On cross-examination, the foreman testified he learned about the claimant's injuries only when he was asked to testify. The foreman testified the claimant met him at a bar to pick up money but the claimant never reported an injury or asked for his medical bills to be paid. The foreman could not remember where the bar was located, but testified the claimant called or texted him to get directions to the bar. When asked to identify a phone number the claimant provided as the foreman's phone number, the foreman testified he did not recognize the phone number.

After the testimony was completed, the WCLJ allowed the claimant's attorney to call the phone number to which the claimant testified he texted the foreman. The attorney asked for the employer's foreman by first and last name and was told it was not the foreman's number, but other people called the number asking for the foreman.

By a decision filed January 29, 2016, the WCLJ disallowed the claim, finding that the employer witness was more credible than the claimant, and noting the hospital records reported a different history of the accident than the claimant reported.

The claimant filed an application for administrative review, and argued the medical records from the day after the accident confirmed the claimant was injured. Further, the claimant submitted text messages sent to the foreman confirming the injury, and although the foreman testified the phone number did not belong to him, he also testified he met the claimant to give him his check. Further, the claimant argued any discrepancies in the claimant's testimony and the documentary evidence were caused by difficulties in translation as the claimant speaks Spanish.

The carrier filed an untimely rebuttal.

LEGAL ANALYSIS

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]).

"Workers' Compensation Law § 18 requires a claimant to provide his or her employer with written notice of a work-related injury within 30 days of the underlying accident (see Workers' Compensation Law § 18; Matter of Baker v E.J. Constr. Group, Inc., 26 AD3d 652, 809 NYS2d 645 [2006]). Failure to tender the required notice, however, may be excused if...the employer or its agent had actual knowledge of the accident (see Workers' Compensation Law § 18; Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784, 785, 788 NYS2d 237 [2005])" Matter of Coffey v Shop-Rite Supermarkets N., 39 A.D.3d 1006 (2007).

Here, the claimant credibly testified that he was injured on April 9, 2015, when a wooden beam fell on him, and gave notice of the accident to his foreman on the day it occurred. The April 10, 2015, medical report from NHCAC Jersey City medical clinic indicates that the claimant was seen for left leg pain due to a work accident on April 9, 2015. That report corroborates that claimant sustained an accident at work on April 9, 2015. Although the report states that the claimant provided a history that iron/heavy metal fell on his left leg at work on April 9, 2015, rather than a wooden beam, this discrepancy is negligible and does not undermine claimant's credibility.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant sustained an accident arising out of and in the course of his employment on April 9, 2015, and that the employer had actual knowledge of the accident on the day it occurred, thereby excusing claimant's failure to provide timely written notice. The case is remitted to the trial calendar to address all outstanding issues, including what injuries resulted from claimant's April 9, 2015, accident.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed January 29, 2016, is REVERSED. Claimant sustained an accident arising out of and in the course of his employment on April 9, 2015, and his employer had actual knowledge of the injury on the date it occurred. The case is continued as indicated above.