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Workers' Compensation Board

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Case # G1215145
Date of Accident: 02/10/2015
District Office: Albany
Employer: Continental Building Products
Carrier: ACE American Insurance Co.
Carrier ID No.: W019004
Carrier Case No.: C494C4328555
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Rella & Associates, PC
Panel: Kenneth J. Munnelly


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 October 6, 2016.


The issue presented for Mandatory Full Board Review is whether the claimant's right shoulder injury is causally related.

The Workers' Compensation Law Judge (WCLJ) found that the right shoulder injury is not causally related.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would find that the right shoulder injury is causally related.

The claimant filed an application for Mandatory Full Board Review on October 14, 2016.

A rebuttal was filed by the carrier without the Board prescribed cover sheet or proof of service on the parties of interest and was not considered.

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


The claimant filed an EC-3 (Employee Claim) on March 9, 2015, in which he alleged that on February 10, 2015, while at work, he slipped on ice and fell face down in the road causing injuries to his right ankle, right shoulder and right hip. The initial medical reports by claimant's treating physician, Dr. Brown, for treatment on February 10, 2015, and February 17, 2015, indicate that claimant was injured at work the day before, February 9, 2015, and only references an ankle fracture. Dr. Brown states in his initial report that claimant had been "seen in the ER at Hudson Valley." The first medical evidence to mention a shoulder injury is a March 24, 2015, note by Dr. Brown which states that claimant was "suffering from right shoulder pain, which he states has been present since his fall."

By a decision filed February 23, 2016, the WCLJ established the claim for the right ankle, set claimant's average weekly wage at $1,641.35, and made awards. The case was continued to consider amending the claim to include the right shoulder.

The claimant testified through a Spanish interpreter at the March 14, 2016, hearing, that on February 10, 2015, he slipped on ice and fell on his right side while working. He broke his right ankle and struck his right shoulder on the ground, but the doctors focused on the right ankle fracture at first.

On cross-examination, the claimant testified that after the accident he went to the Northern Westchester Hospital in Carmel, New York, and told Dr. Brown that he fell on his right shoulder while he was at the hospital. However, on further cross-examination, the claimant changed his testimony by stating that he went to the Peekskill hospital after the accident and then went to Dr. Brown's office a week later. When advised that the medical evidence indicated that he treated with Dr. Brown on February 10, 2015, the day the accident occurred, the claimant admitted he really does not remember when he first went to Dr. Brown's office, but recalled advising Dr. Brown that he had injured his right shoulder during his initial treatment, and when he followed up with Dr. Brown on February 17, 2015. He mentioned having pain in his shoulder when he saw Dr. Brown on March 25, 2015. He returned to work on September 1, 2015, and he has not treated his right shoulder since then.

Dr. Brown, the claimant's treating orthopedic surgeon, was deposed on April 12, 2016, and testified that he first saw the claimant on February 10, 2015, who presented with a history of injuring his right ankle at work. The doctor testified that the x-rays showed a fracture of the right ankle, and it was splinted before the claimant came to him for further management. The doctor admitted he did not record the mechanism of the injury. The claimant complained of right ankle pain with no history of a prior right ankle injury. The doctor's initial diagnosis was a non-displaced fracture of the right distal fibula.

Dr. Brown testified that the claimant first made complaints of right shoulder pain during the March 25, 2015, office visit, when he told the doctor that he hurt the right shoulder in the fall at work (although Dr. Brown testified that the office visit was on March 25, his report, while dated March 25, indicates that the examination was on March 24, 2015). On examination, the claimant had impingement syndrome of the right shoulder, and x-rays showed a curved acromion (type two) and arthritis at the AC joint. The claimant reported that he never had a prior injury to his right shoulder. The claimant never told Dr. Brown how he injured the right shoulder during the fall. The doctor opined that the right shoulder impingement syndrome is causally related to the fall based upon the history provided by the claimant.

On cross-examination, Dr. Brown explained that the curved acromion is a congenital condition and not caused by trauma. He also confirmed that the arthritis on the x-ray is pre-existing too. The doctor explained that he believed the impingement syndrome is causally related because the claimant did not have these symptoms until after the fall.

Dr. Nunez examined the claimant for the carrier on June 4, 2015, and April 27, 2016, and he filed IME reports for each of those examinations; however, the doctor only addressed the issue of the causally related right shoulder in the April 27, 2016, examination. Dr. Nunez concluded that the claimant's right shoulder injury was causally related based upon the history that was provided to him.

By a reserved decision filed June 15, 2016, the WCLJ disallowed the claim for the right shoulder because he did not find the claimant's testimony regarding the accident and onset of the right shoulder injury to be credible.


"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]).

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

Here, the record reflects that claimant tripped and fell at work on February 9, 2015, fracturing his right ankle. Claimant first raised the issue of a right shoulder injury in his EC-3 filed with the Board 28 days later, on March 9, 2015, and clearly mentioned injuring his shoulder at work to Dr. Brown during his March 24, 2015, office visit. While claimant's testimony concerning his initial hospital treatment and his first treatment with Dr. Brown was inconsistent and confused, a review of that testimony, taken more than a year after the accident, while clearly showing claimant to be a poor historian who had difficulty recalling the timeline of his treatment, does not in any way suggest that claimant was motivated by an intent to mislead or deceive. It is conceivable that this might explain the contradiction between claimant's testimony that he advised Dr. Brown that he had injured his shoulder during his February 10 and 17, 2015, office visits, and Dr. Brown's testimony that claimant did not mention a shoulder injury until March 24, 2015, which is corroborated by the doctor's reports. The seriousness of claimant's ankle fracture, which required casting and physical therapy, and caused claimant to lose more than six months of work, may explain why claimant's shoulder injury was not mentioned in the earlier medical reports, as the focus of claimant's treatment was on the ankle.

Therefore, the Full Board finds that the preponderance of the evidence supports amending this claim to include a causally related right shoulder injury.


ACCORDINGLY, the WCLJ reserved decision filed June 15, 2016, is MODIFIED to establish this claim for a right shoulder injury. The decision is otherwise affirmed. No further action is planned by the Board at this time.