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Case # G0826449
Date of Accident: 04/04/2014
District Office: Albany
Employer: Sodexo Inc.
Carrier: New Hampshire Insurance Co.
Carrier ID No.: W154009
Carrier Case No.: 000808085062WC01
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Martin Harding & Mazzotti LLP
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 (MOD) filed April 13, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant sustained a work-related injury to the left foot, and if so,
  2. whether claimant violated Workers' Compensation Law (WCL) § 114-a.

The Workers' Compensation Law Judge (WCLJ) established the claim for a left foot injury and found no violation of WCL § 114-a.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would find that claimant's injury is not causally related to his employment and would disallow the claim.

The carrier filed an application for Mandatory Full Board Review on May 12, 2016.

The claimant filed a rebuttal on June 13, 2016.

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

FACTS

A medical report filed on April 28, 2014, for medical service on April 14, 2014, at Albany Medical Center (Albany Med), indicates:

This patient's original history started approximately a month ago. At that time, he developed a pressure sore on his left great toe on the medial aspect over the distal phalanx. This has persisted and become more sore. Then 4 days ago, he accidentally dropped relatively lightweight pot on the top of the foot causing this to become much worse. He states that for the last 4 to 5 days the pain has dramatically increased. With the increase in pain, the patient did take some clindamycin, but states this still hurts.

The medical report additionally indicates that the claimant's diabetes was in very poor control, and that the claimant experiences "significant friction on his left great toe secondary to his occupation in construction work and the requirement for work boots."

In an April 25, 2014, surgical report, Dr. Roberts noted that claimant's left big toe was significantly infected and that the toe had to be amputated.

An EC-1 (Notice of Case Assembly) was filed on April 29, 2014, indicating that the claimant sustained a foot injury on April 4, 2014, while employed by Sodexo Inc.

The carrier controverted the claim by filing a SROI-04 (Subsequent Report of Injury - Report Type [MTC] 04-Denial) on May 29, 2014, contending that the claimant did not sustain an accident in the course and scope of his employment and that he did not sustain a causally related injury.

In a C-4 (Doctor's Initial Report) based on a May 5, 2014, examination, Dr. Potluri stated that on April 4, 2014, "while washing pots, one fell off table and landed on [claimant's] left foot cutting it." Dr. Potluri indicated that the claimant's left big toe had been amputated and that the injury was causally related to the April 4, 2014, accident.

In a C-3 (Employee Claim) filed on June 25, 2014, the claimant alleged that "I was washing pots when I went to grab a washing pad, the pot fell off the table on to my foot." The claimant explained that "my left foot was injured and cut across the left toe." The claimant alleges that he first sought medical treatment at Albany Med on April 7, 2014. The claimant disclosed a prior similar injury on the C-3, namely a burn to his left foot that required treatment with Dr. Velarde.

In a decision filed on November 4, 2014, the WCLJ found prima facie medical evidence for a left foot injury based on the medical report of Dr. Potluri and continued the case for the testimony of the claimant and a lay witness.

At a hearing held on January 21, 2015, the claimant testified that he was employed by the University of Albany on April 4, 2014, as a lead pot washer in the kitchen. On that date, a pot fell on his foot, causing a cut to the knuckle of his big toe. The pot hung above his head prior to it falling. He informed his immediate supervisor, who sent him to the hospital. The claimant went to Albany Med for treatment. He was "assigned" to Dr. DiPreta, who diagnosed the claimant and concluded that he needed to have his toe amputated. He subsequently required amputation of his remaining toes and half of his foot. The claimant indicated that his recovery from the toe injury was complicated by his diabetes. On re-direct, the claimant stated that other than the burn of his left foot, he has never treated for any other injury involving his left foot, and that his department manager completed an accident report for his injury.

On cross-examination, the claimant testified that he has had diabetes for a period of eight years. The claimant admitted that he filed a workers' compensation claim in 2013 after spilling a bucket of hot water on his left foot, causing second and then third degree burns. He denied developing a pressure sore in March of 2014 on his left great toe. Claimant reiterated that he informed Albany Med that he sustained his injury on April 4, 2014, the day he went to the hospital from work. The claimant indicated that the pot that fell on his toe was a 55 gallon cooking pot that weighed nine to ten pounds. The accident was unwitnessed, but he let out a scream that caused his immediate supervisor at the time to come out of his office. The claimant has worked for the employer for five years. He was wearing non-slip leather safety shoes provided to him by the employer at the time of the accident. The shoe had no impact on the injury he sustained. On re-cross, the claimant testified that he never returned to work and was admitted to the hospital on April 7, 2014, after his toe began to turn black.

The claimant's department manager, at the January 21, 2015, hearing, stated that he was not the claimant's immediate supervisor, but oversaw the department in which he worked. The claimant's immediate supervisor was the executive chef. He did not witness the accident alleged by the claimant to have occurred on April 4, 2014. He was advised by the claimant two days later that he had an accident. He completed an accident report based on information provided to him by the claimant. The claimant never returned to work after April 4, 2014.

On cross-examination, the claimant's department manager testified that he could not recall if the claimant was working on April 4, 2014. He was not present in the kitchen on that date and that it wasn't until approximately two days after April 4, 2014, that he was provided notice by the claimant of the injury over the phone. He did not recall being informed that the claimant left work on April 4, 2014. The witness also did not recall if the executive chef that the claimant worked under was present at work on April 4, 2014, and was unaware if the claimant was still on the employer's payroll.

In a decision filed January 26, 2015, the case was continued for the testimony of two additional employer witnesses, and depositions were directed of the claimant's treating medical providers and the carrier's consultant.

In a decision filed March 5, 2015, the WCLJ directed the submission of deposition transcripts of Drs. Holland, DiPreta and Potluri and found that the two additional employer witnesses were not available.

At a deposition held on March 4, 2015, the carrier's consultant, Dr. Holland, testified that he performed an independent medical examination (IME) of the claimant on December 8, 2014, and received a history of having sustained a work-related injury on April 4, 2014, when a 55 gallon pot fell from a shelf onto his left foot causing a laceration just above the knuckle on his left big toe. The claimant indicated that he was admitted to the hospital three days later after the toe turned black. When Dr. Holland questioned the claimant about the date he provided, stating that it did not conform with the medical records the carrier provided to him, the claimant indicated that he was not sure about the date. Dr. Holland also testified that the records that were provided to him from Albany Med indicate that claimant developed a pressure sore on his left great toe one month prior, and that the pot falling on his toe caused the pain to become much worse and lead to his emergency department visit. The tests of the claimant's blood showed that he had very poor control over his diabetes over the last several months. Dr. Holland's assessment, following his physical examination of the claimant, was that he had suffered gangrene from a diabetic foot wound that started with a pressure ulcer about a month prior. Dr. Holland did not think that there was a significant relationship to any work-related injury, indicating that claimant's foot wound was due to poor control of his diabetes and a thirty year history of cigarette smoking. The claimant did admit that he had a previous burn to his left foot, but because of the amputation, it was no longer physically present.

On cross-examination. Dr. Holland testified that it was understandable that the claimant was confused with respect to the timing between the occurrence of his accident and his treatment at Albany Med, as he examined the claimant in December and the incident occurred in April. Dr. Holland indicated that his review of the medical records reveals that the emergency department physician did not report a laceration on the claimant's left great toe, and mentioned only that the issue began a month ago when the claimant began to wear new shoes for work. The pot that fell on the claimant's toe did not cause the injury, but only increased the pain in his toe. The doctor reiterated that it was his poorly controlled diabetes that caused the foot wound and subsequent amputation. Dr. Holland characterized the pot that fell on the claimant's foot as being light weight, and only increased the pain in his pre-existing wound. Dr. Holland did not have any medical records prior to April 4, 2014, but stated on re-direct that the records he did have contained a history of his diabetic condition.

At a deposition held on March 26, 2015, the claimant's treating physician, Dr. Potluri, testified that the claimant first came under his care on May 5, 2014. He saw claimant following the amputation of his left great toe in order to check his wound. The claimant informed Dr. Potluri that a 55 gallon pot fell on his foot. The claimant was last seen by another physician in his practice on June 10, 2014. Dr. Potluri did not have an opinion as to causal relationship as he only saw the claimant after the operation.

On cross-examination, Dr. Potluri confirmed the provided history of a 55 gallon pot falling on his left foot. He noticed that records reflected that the claimant at one point in his treatment described the pot as being "light weight" and that the physicians at Albany Med felt that the primary culprit of the claimant's condition was his diabetes. Dr. Potluri was aware that the claimant suffered a third-degree burn to his left foot in 2013 as he was seen for that condition by a physician in his practice. He was also aware based on notes in the file that the claimant had an ulcer on his left big toe. He admitted that the healing process can be complicated with individuals that have diabetes. Dr. Potluri was aware that the claimant has uncontrolled diabetes and was insulin dependent. Dr. Potluri was unaware of the claimant's smoking habit. Smoking can cause vascular deficiency, which could affect the progression of a wound healing.

At a deposition held on April 2, 2015, the claimant's treating physician, Dr. DiPreta, testified that he began to treat the claimant at the end of April 2014. He was informed by the claimant that he sustained a cut on his foot as a result of a falling pot, which subsequently resulted in an amputation of his toe. Claimant had already had his toe amputated by one of Dr. DiPreta's colleagues when Dr. DiPreta first saw him. His subsequent treatment of the claimant involved debridement of the wound and another amputation in August 2014. Dr. DiPreta conceded that the pot falling on his foot may not have been the "complete cause for the problems he developed." Dr. DiPreta opined that causal relationship may be partially attributable to claimant's diabetes and the laceration caused by the falling pot. Dr. DiPreta conceded that diabetics are at a greater risk of developing complications with foot injuries. On re-direct, Dr. DiPreta testified that if the pot that fell on the claimant's left toe fell in continuity with his pre-existing ulcer, then it could "cause a bigger wound and greater burden and greater risk of infection."

On cross-examination, Dr. DiPreta testified that the claimant was initially seen by Dr. Roberts in his practice, and it was he who performed the amputation surgery on April 25, 2014. Dr. Roberts did not list a pot falling on the claimant's foot in his operative report. Dr. DiPreta received the history concerning the falling pot from the claimant, who informed him that it was a 55 gallon pot. Dr. DiPreta did not know if he reviewed the Albany Med records before he first examined the claimant. He had no knowledge concerning the claimant's prior statement that the pot was "light weight." While Dr. DiPreta was aware of the burn the claimant sustained to his left foot in 2013, he did not think that the claimant relayed this to him. He did not recall the claimant providing him with a history of any pre-existing conditions to the left foot. Dr. DiPreta was aware that the claimant's diabetes was not well controlled when he presented to him. He was aware that the claimant was a smoker, but did not know for how long or how many packs of cigarettes he smoked per week. A patient with diabetes, who also smokes, would be expected to have difficulty with the progression of the healing of a foot wound.

In a reserved decision filed on May 18, 2015, the WCLJ concluded that the claimant sustained a causally related left foot injury in a work-related accident on April 4, 2014. The WCLJ based his decision on the medical opinion of Dr. DiPreta, who concluded that while the falling pot may not have been the sole cause of claimant's foot problems, and that claimant's diabetes was also a causal factor, that the falling pot could aggravate or exacerbate a pre-existing toe ulcer. The WCLJ discounted the opinion of the carrier's consultant, Dr. Holland. The WCLJ further noted that the absence of a separate injury site supports the conclusion of Dr. DiPreta that the pot landed in continuity with the ulcer. The WCLJ further concluded that there is no evidence of any willful misrepresentation by the claimant in violation of WCL § 114-a.

The carrier requested administrative review of the WCLJ's decision.

LEGAL ANALYSIS

Causal Relationship

A claimant's predisposition to injury does not preclude compensation. "It is well settled that where causally related injuries from a claimant's employment precipitate, aggravate or accelerate a pre-existing infirmity or disease, the resulting disability is compensable" (Matter of Johannesen v New York City Dept. of Hous. Preserv. § Dev., 84 NY2d 129 [1994]).

"[I]t is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

The Full Board finds, upon review of the evidence of record, that the claimant sustained a work-related injury to the left foot. The claimant sustained an accident within the meaning of the Workers' Compensation Law and the medical opinion of Dr. DiPreta supports a finding of causal relationship. The claimant reported to the Board, his medical providers and the carrier's IME, that he sustained a cut on his left big toe after a 55 gallon pot fell on his foot while at work. The employer's witness conceded that he was informed by the claimant that an accident occurred within a few days of the April 4, 2014, accident date. The Albany Med report, while describing the pot that fell on claimant's toe as "relatively lightweight," nonetheless reflects that claimant did report increased symptoms, requiring medical treatment, as a result of the incident. Dr. DiPreta, while conceding that claimant's diabetes may have also played a role, found a causal relationship between the April 4, 2014, accident and claimant's resulting toe amputation. There is a discrepancy between the Albany Med report, which provided a history of a chronic lesion on claimant's left big toe, and later medical reports which fail to mention a prior lesion, but instead indicate a laceration on the toe resulting from a pot falling on it. However, the Albany Med report also contains an incorrect history of claimant working in the construction industry, thereby undermining the remainder of the history reflected in the report. Moreover, the WCLJ who heard claimant testify that the pot falling on his toe had caused a laceration, found claimant to be credible. 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]).

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]).

The Full Board finds, upon review of the evidence of record, that the carrier did not meet its burden of demonstrating that the claimant violated WCL § 114-a. The carrier's argument that the claimant violated WCL § 114-a is premised on their contention that (1) claimant never reported his 2013 third degree burns to his left foot to Dr. DiPreta, (2) claimant denied ever having a pressure sore on his left great toe, and (3) claimant was not hospitalized on April 4, 2014, or April 7, 2014. The alleged failure to report his 2013 burn injury to Dr. DiPreta is not supported by a review of the record. Dr. DiPreta stated only that he did not think that the claimant relayed this to him and he did not recall the claimant providing him with a history of any pre-existing conditions to the left foot. Also, the claimant disclosed the 2013 burn injury on the C-3 that was filed in this case, to the other physicians including the carrier's consultant, Dr. Holland, and in his testimony before the Board. The discrepancy between the Albany Med report, which indicated a history of a pressure sore on claimant's left great toe, and the later medical reports as well as claimant's testimony, created a credibility issue which the WCLJ found in favor of the claimant. Moreover, even assuming that claimant did sustain a lesion/pressure sore on his toe prior to his work-related accident, his testimony that he did not remember developing a sore on his toe would not constitute a violation of WCL § 114-a. Finally, with respect to the date the claimant was admitted to the hospital, it is entirely plausible that the claimant is a poor historian and simply misremembered the date of his initial hospital admission. Dr. Holland testified that when he asked the claimant about the discrepancies in the dates of admission, claimant specifically indicated that he wasn't sure about the dates. Dr. Holland even testified that this was understandable given the eight month delay between the date of hospital admission and the date of his testimony. The claimant's failure to recall certain events does not warrant the conclusion that he willfully misrepresented the truth in violation of WCL § 114-a.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed May 18, 2015, is AFFIRMED. The case is continued.