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Workers' Compensation Board

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Case # G1054465
Date of Accident: 08/07/2014
District Office: Buffalo
Employer: MD D’Andrea Concrete
Carrier: *** Carrier Undetermined ***
Carrier ID No.: W000004
Carrier Case No.:
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: Viola Cummings & Lindsay LLP
Panel: Kenneth J. Munnelly


The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed May 26, 2016.


The issues presented for Mandatory Full Board Review are:

  1. whether the claimant properly served his application for Mandatory Full Board Review;
  2. whether the claimant sustained a work-related low back injury; and,
  3. whether the claim should be disallowed for failing to provide proper notice pursuant to Workers' Compensation Law (WCL) § 18.

The Workers' Compensation Law Judge (WCLJ) established the claim for the low back.

The Board Panel majority reversed the WCLJ and disallowed the claim, finding the claimant's testimony self-serving, not credible and contradictory to the other witnesses' testimony.

The dissenting Board Panel member would affirm the WCLJ decision to establish the claim because "there is no specific evidence indicating that the WCLJ's finding on credibility was in error."

The claimant filed an application for Mandatory Full Board Review on June 25, 2016, arguing that his testimony was credible, that the WCLJ was in the best position to assess witness credibility, and requests that the claim be established.

Zurich American for Thomann Asphalt filed a rebuttal on July 25, 2016, arguing that the claimant's testimony was incredible and was wholly contradicted by the employer's witnesses' testimony.

New Hampshire Insurance/AIG (AIG) for Lehigh Construction Group filed an untimely rebuttal on August 15, 2016, arguing that the claimant's application for Mandatory Full Board Review should be denied pursuant to 12 NYCRR 300.13(a) as it was not served upon its third-party administrator, "Gallagher Bassett or its attorneys." They then state that "although claimant's Application for Full Board Review indicates that Gallagher Basset was served on 6/25/16 through its attorney by either mail and/or e-mail, the Application For Full Board Review was never received." On the merits of the case, Lehigh contends the Board Panel majority's opinion should be affirmed because the testimony revealed the claimant did not injure his back at work, but at his friend's cabin.

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


The claimant filed a C-3 (Employee Claim) dated September 8, 2014, alleging that he suffered a low back injury on August 7, 2014, while working for M.D. D'Andrea Concrete at the Hospice site in Como Park, New York, while smoothing out concrete with a rake. The C-3 indicates that notice was provided to the employer, but does not indicate the date on which notice was given.

Because M.D. D'Andrea Concrete (D'Andrea) was uninsured, the Uninsured Employers Fund (UEF) was placed on notice, as were Thomann Asphalt (Thomann), Lehigh Construction Group (Lehigh), who were contractors at the project where claimant was allegedly injured, and their carriers. State Insurance Fund (SIF), who had previously insured D'Andrea, was also placed on notice.

MRI results from August 12, 2014, show lumbar lordosis and mild multilevel discogenic disease most significant at L4-L5. MRI results from September 5, 2014, show mild to moderate discogenic disease at L4-L5 and L5-S1 with a shallow central right paracentral disc protrusion L4-L5 and a shallow right paracentral disc protrusion L5-S1 causing no significant spinal canal narrowing. Mild neuroforaminal narrowing L3-L4 through L5-S1, most significant at L4-L5 on the left; mild to moderate.

In a progress note dated October 15, 2014, Susan Zakrzewski, NP, noted the claimant was under her care for a low back condition with radiculopathy and right shoulder pain. The note states, "Both conditions which may or may not have been exacerbated by the patients employment..."

In a C-11 (Employer's Report of Injured Employee's Change in Employment Status Resulting from Injury) dated December 8, 2014, the employer noted a right shoulder injury and indicated that claimant missed work from October 11, 2014, until December 8, 2014. The employer first wrote that claimant missed work "due to injury," but then crossed it out and wrote "he was terminated he was not reliable" in its place.

In a narrative report dated January 8, 2015, the claimant's treating chiropractor, Dr. Cianchetti, reported that claimant provided a history of sustaining a work-related injury to the low back on August 7, 2014, while grading concrete. Dr. Cianchetti, diagnosed lumbar disc herniation, and opined the claimant's condition was 100% causally related to the work accident on August 7, 2014, and the claimant was temporarily totally disabled from work.

At a hearing held on June 9, 2015, multiple parties were represented including D'Andrea, Thomann, UEF, and the claimant. The claimant testified at the June 9, 2015, hearing that he began working for the employer in 1999 as a concrete laborer. On August 7, 2014, he was working in Como Park for the employer grading concrete when he felt a pop in his back. The claimant did not notify anyone at that time about his back pain but the following day, August 8, 2014, he informed the owner he had injured his back. He continued to work on August 7, as well as the following day, which was a Friday, and worked a half day on that Saturday. When he returned to work on the following Monday, he could not perform his job because he was in too much pain. He stopped working on August 11, 2014, and he went to the VA for treatment on August 12, 2014. He began physical therapy at the VA in September 2014, and saw a chiropractor beginning in January 2015. He did not know he had been terminated until December 8, 2014. He spoke to the owner on August 17, 2014, about the fact that the owner did not have insurance. Prior to the injury on August 7, 2014, he never had work restrictions because of his back. He had previously pulled muscles in his back, had treated at the VA hospital, and had been diagnosed with a strained back.

On cross-examination, the claimant testified when he felt the pop in his back on August 7, 2014, he kept working and did not stop at all. The claimant confirmed he did not tell anyone on August 7, 2014, but the following day, he informed the owner at about 9:30 or 10:00 am that morning, but continued to work a full day. His lower back "was killing" him on August 8 and he took Motrin. He worked the following day, August 9, for four or five hours, and August 10 he only worked for about one to one and a half hours because his back hurt too much. On August 11, 2014, he told the owner he could help him get through the pour, but afterwards, he would not be able to do anymore, and the owner told him, "get in your van and leave." He also told the owner's cousin, who also worked with him, about his injury.

The claimant testified that he had previously missed work because of his back, and he had informed the owner that he had pulled his back out. The claimant denied sustaining any injuries to his low back while at his friend's cabin and denied treating at the VA hospital prior to August 7, 2014, for his low back. The claimant learned he had been terminated from his employment on about December 8, 2014, and between August 2014 and December 2014, he did not know whether the owner was holding a job for him, and he never called the owner to discuss it.

The owner of the company testified on June 9, 2015, that on August 7, 2014, the claimant was not working very much and was talking on his phone. He had been getting complaints from other workers about the claimant. The owner denied that the claimant reported an injury to him on that day, and no one reported that the claimant was injured on that day. The owner testified that claimant did not report an injury to him on August 8, 2014, or August 9, 2014, and he observed the claimant working without incident on those dates. On August 11, 2014, at the shop, the claimant told him, "that's all I'm doing today. I'll help you with the floor and then I'm going home." He then told the claimant "that's it forever. Have a nice day." The claimant did not say anything about his back at that time, or at any prior time. The owner testified he had sent the claimant home on prior jobs, things had been bad all year, but he fired the claimant at that point because other workers were complaining, and the claimant's lack of effort, participation and work ethic. He first learned about the worker's compensation claim when he received a letter from the claimant's attorney dated September 12, 2014. The owner acknowledged he did not formally fire the claimant.

On cross-examination, the owner testified he had known the claimant for 45 years, and the claimant had worked seasonally for him for 15 years from spring until winter, and each spring, the owner brought the claimant back to work. The owner admitted he did not have workers' compensation insurance for a period of time including August 2014, and if the claimant had not filed a workers' compensation claim, they would not have been in such a difficult position.

At a hearing held on July 14, 2015, an employee of D'Andrea testified that he had worked as a laborer and foreman for the owner for about 11 years. He had worked with the claimant on August 7, 2014, at the Hospice job and the claimant said nothing to him about a back injury. The witness testified that while at the shop, the claimant talked about injuring his back moving firewood at a friend's cabin the weekend before August 4, 2014. The employee confirmed he was present on August 11, 2014, when the claimant told the owner that he was done for the day and the owner told the claimant he was done. The employee testified he was unclear whether the claimant would be returning to work after that.

Another D'Andrea employee, the owner's brother, testified on July 14, 2015, that he had worked at the Hospice site with the claimant on August 7, 2014. He did not know the claimant was injured at the Hospice site. However, while they were working at a school in Williamsville, the claimant said he injured his back at his friend's cabin throwing firewood.

In a decision filed July 17, 2015, the WCLJ found that SIF had cancelled its policy covering D'Andrea effective June 16, 2014, and discharged SIF and removed them from notice. The carrier for Thomann requested administrative review of that decision. SIF and the carrier for Lehigh filed rebuttals.

In a reserved decision filed November 25, 2015, the WCLJ found the claimant had a work-related injury to the low back and established this claim. The WCLJ found the testimony of the owner's employee and brother did not support the allegation that the claimant injured his back at a friend's cabin because the testimony was inconsistent as the employee testified the claimant told him about the incident at the shop, but the brother testified the claimant told him about the incident at the Williamsville school. The WCLJ noted that the claimant sought prompt medical attention and timely notified the employer about the injury.

In an application for administrative review, the carrier for Lehigh argued that the claim should have been disallowed because the testimony revealed the claimant did not suffer a work-related injury, and because the claimant failed to provide timely notice of the claim pursuant to WCL § 18. In rebuttal, the claimant argued the WCLJ decision was supported by substantial evidence as the claimant's testimony was corroborated by the owner's testimony as well as the medical evidence. The claimant also pointed out that the employer's witnesses testified inconsistently and the WCLJ appropriately disregarded their testimony.

The claimant filed a reply along with an affidavit confirming that the application for Mandatory Full Board Review was served on all parties in interest on June 25, 2016.


Service of the Application for Mandatory Full Board Review

Lehigh maintains that the claimant's application for Mandatory Full Board Review should be denied for failing to comply with the service requirements contained in 12 NYCRR 300.13(a), as Lehigh never received the application. The claimant's attorney submitted a reply to Lehigh's rebuttal and attached an affidavit swearing that he served all of the proper parties to the action who were listed on the affidavit section of the application for Mandatory Full Board Review, among them the attorney for Lehigh.

Where it is clear that all parties of interest have had a full and meaningful opportunity to submit opposing arguments prior to the Board Panel's review, there is no prejudice and the Board has the discretion to accept a defective and/or late application for review (see Matter of Greenough v Niagara Mohawk Power Corp., 45 AD3d 1116 [2007]).

Here, the affirmation on claimant's form RB-89.2, accompanying claimant's application for Mandatory Full Board Review, which is signed by claimant's attorney, and the affidavit executed by claimant's attorney in response to Lehigh's rebuttal, indicate that counsel for Lehigh, Wayne Schiffhauer, Esq. of Williams & Williams, was served with claimant's application for Mandatory Full Board Review by email. Williams & Williams has represented Lehigh during the pendency of this claim and Mr. Schiffhauer appeared on behalf of Lehigh at both hearings at which testimony was taken and filed the application for administrative review of the WCLJ's November 25, 2015, decision on Leheigh's behalf. Lehigh was able to file a rebuttal, albeit untimely, to claimant's application for Mandatory Full Board Review, and respond to the claimant's arguments. The Full Board finds that service on Lehigh, through its attorney Mr. Schiffhauer, was sufficient (see Matter of Dow v Silver Constr. Corp., 110 AD3d 1154 [2013]). The Full Board, therefore, will consider the claimant's application for Mandatory Full Board Review and Lehigh's rebuttal.

Accident and Notice

Whether claimant sustained an accidental injury and provided timely notice to his employer depends entirely on the credibility of the witnesses.

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 found that claimant sustained an accidental injury to his low back at work on August 7, 2014, and provided verbal notice to his employer the following day. The WCLJ was present when the witnesses testified and was able to observe their demeanor, and found the claimant to be credible. Based on the record as a whole, the credibility finding of the WCLJ in this matter deserves considerable deference.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant suffered a work-related injury to the low back and provided timely notice to the employer.


ACCORDINGLY, the WCLJ reserved decision filed November 25, 2015, is AFFIRMED. No further action is planned by the Board at this time.