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Case # G1405847
Date of Accident: 08/19/2015
District Office: NYC
Employer: Gran Piatto d’Oro
Carrier: Norguard Insurance Company
Carrier ID No.: W160659
Carrier Case No.: CUWC699998001
Date of Filing of Decision: 04/13/2017
Claimant's Attorney: Shulman & Hill, PLLC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on March 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 27, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim should be established for a work-related right foot injury.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority reversed the WCLJ decision and established the claim.

The dissenting Board Panel member would affirm the WCLJ and disallow the claim.

The carrier filed an application for Mandatory Full Board Review on November 28, 2016, asserting that the claimant did not prove causal relationship, that the claimant's testimony was inconsistent, and that the Board Panel should have deferred to the substitute WCLJ's findings.

The claimant filed a rebuttal on December 27, 2016, arguing that his credible testimony supports a finding that the accident occurred at work, so the Workers' Compensation Law (WCL) § 21(1) presumption applies to establish the claim because no contrary evidence to rebut the presumption was submitted by the carrier.

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

FACTS

Claimant filed a C-3 (Employee Claim) on September 11, 2015, alleging that he injured his right foot on August 19, 2015, while working as a line cook. The carrier controverted the claim.

Review of the claimant's medical records shows that he was admitted to the Metropolitan Hospital Center on August 21, 2015, with a history of right foot edema for six days that turned into a plantar blister with eventual wet ulcer four days before his admission. An MRI of the right foot taken at the hospital showed evidence of early osteomyelitis of the tibial sesamoid (an infection of a bone in the big toe). The MRI also showed tenosynovitis of the flexor hullucis with infection. The claimant underwent a surgical washout and debridement of the wound, and a wound vacuum was needed. The final diagnosis was cellulitis and abscess of the right foot.

The claimant then treated with Dr. Adeosun on September 17, 2015. The doctor took a history that the claimant's right foot injury occurred at work on August 19, 2015. The doctor stated that claimant's "job responsibilities entailed a lot of standing and walking back and forth while in the kitchen as a line cook. On the date of injury, the patient reports that while working he felt pain in his right foot. He continues to work for the next two days when he noted that his right foot was massively swollen with blisters which got open up with drainage." Dr. Adeosun's examination showed that the claimant had a swollen right foot with an open wound. The doctor diagnosed the claimant with right foot and ankle cellulitis and infected right foot ulcers. With respect to causal relationship, Dr. Adeosun concluded that the "incident the patient described is the competent cause of this injury. The patient's complaints are consistent with the injury. The patient's history of the injury is consistent with his objective findings."

The claimant testified at a hearing on December 7, 2015, through a Spanish interpreter, that he worked for the employer, a restaurant, as a line cook for approximately three years. When asked what happened on August 19, 2015, which led to the filing of this claim, the claimant responded that he "worked for about twelve days [] when it broke. It already had an infection" (transcript, 12/7/15 hearing, p. 4). The claimant told his supervisor about this accident on August 19, 2015, and then went to the hospital on August 21, 2015. The wound on his foot is still half open and bleeds when he walks.

On cross-examination, the claimant testified that he normally worked five days a week, but on some occasions he worked six or seven days a week. The week of the accident, the claimant worked five days with Monday and Tuesday off, and the accident occurred on Wednesday. His foot was swollen the prior Sunday, which he first noticed while working on August 14, 2015. Before August 19, 2015, the claimant was never diagnosed with diabetes, but he has been told he has the early stages of the disease. The claimant was prescribed a pill to take once a day, and no other tests were performed. Neither foot had ever swelled like this before. The claimant was able to complete his shift on August 19, 2015, because the wound opened towards the end of his shift.

In a decision filed December 10, 2015, the WCLJ found that the carrier had waived the opportunity to obtain an independent medical exam (IME) and was precluded from producing a lay witness, as the employer witness scheduled to testify on December 7, 2015, was not available.

Dr. Adeosun failed to appear at a deposition scheduled for January 20, 2016. The carrier requested that the doctor's testimony and reports be precluded.

In a reserved decision filed February 5, 2016, the WCLJ precluded the testimony of Dr. Adeosun based on his failure to appear for a deposition, but denied the carrier's request to preclude his reports. The WCLJ nonetheless disallowed the claim, finding that the reported history on Dr. Adeosun's reports is inconsistent with the history contained in the emergency room records and the claimant's testimony. The WCLJ found that the accident as described by the claimant did not happen.

The claimant sought administrative review of the WCLJ decision.

LEGAL ANALYSIS

The Full Board finds that substantial evidence does not exist to support a finding of causal relationship and that this claim did not arise out of or in the course of the claimant's employment. There is no medical evidence relating an accident or occupational disease to his employment. The only medical evidence before the Board is an emergency room record listing a foot ulcer, with a secondary diagnosis of type 2 diabetes. There is no evidence in this record relating the need for treatment to his employment.

"It [i]s claimant's burden to establish a causal relationship between his employment and his disability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 [2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876 [2002]). To this end, a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13 AD3d 764 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]).'[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship' (Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674 [1997], affd 90 NY2d 914 [1997]; see Matter of Zehr v Jefferson Rehab. Ctr., 17 AD3d 811 [2005])" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008]).

The medical evidence is in contradiction to the testimony of the claimant. Dr. Adeosun's precluded report found a link between the claimant's standing and walking at work and his development of a right foot condition, but the record does not support any theory of causal relationship. Significantly, Dr. Adeosun was scheduled to testify via deposition, but he failed to make himself available for cross-examination and his testimony was properly precluded. The record does not support any factual finding of how the claimant's job at work causes ulcerations, cellulitis, osteomyelitis, from his employment of making pizzas and salads.

Presumption

Although WCL § 21(1) affords claimants the presumption that unwitnessed or unexplained accidents that occur in the course of employment also arise out of that employment, "that statute does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, ... employment" (Matter of Bond v Suffolk Transp. Serv., 68 AD3d 1341 [2009] [citations omitted]). Thus, the presumption cannot be used to show that an accident occurred (Matter of Fedor-Leo v Broome County Sheriff's Dept., 305 AD2d 760 [2003]). In this regard, a credibility determination must be made, and the Board is not bound to credit the testimony of the claimant (Matter of Wood v Colonial Tavern & Rest., 22 AD2d 984 [1964], lv denied 15 NY2d 486 [1965]).

Credibility

The claimant testified, though he was diagnosed with pre-diabetes, he was not aware of the diagnosis until the hospital visit and he did not treat for that condition. The claimant did admit, however, that he had been "given a pill to take once a day". This history was confirmed by the Metropolitan Hospital record, which listed Glipizide among his then "current medications." His testimony contradicted the record that they were the "then-current medications" taken prior to admission. A further review of the Metropolitan Hospital record reveals a secondary diagnosis of type 2 diabetes mellitus. The Metropolitan Hospital record also states "he was told he has pre-diabetes" more specifically on page 30 he was told "patient was told he has pre-diabetes in the past" now he has diabetes, with testing performed at Metropolitan Hospital confirming that diagnosis. The claimant also provided a history in the medical record that his Father and three brothers have Diabetes Mellitus, which the provider stated is a "strong family history of diabetes." To be aware of one's family history, and not be aware of being diagnosed in the hospital and taking the medication pre-admission after being asked twice by the Judge of this condition is not credible. Claimant testified:

Q. Have you been diagnosed with diabetes?

A. No, when I went I was told it was the early stages of the diabetes but no tests were performed.

Q. Prior to going to the hospital or prior to this incident had you ever been diagnosed with diabetes before?

A. No. There were no test performed on that day. There was no insulin given. I was just given a pill to be taken once as day.

Q My question is: Before this incident had anyone told you had diabetes?

A. No.

The claimant was aware of his pre-diabetic condition for which he had been taking medication prior to admission, and then after the hospitalization with tests a diagnosis of diabetes mellitus type 2 confirmed in the hospital record in the discharge summary. However, this was not shared with the WCLJ during testimony.

Additionally, the claimant testified that the swelling in his foot was present for at least 12 days before the alleged incident, however, first he testified it appeared on a Sunday when he was not working then changed his testimony that it appeared when he was working. The medical reports from Metropolitan Hospital indicate the presence of "edema" (plantar blister) 6 days before admission to the emergency room, with an ulcer developing 4 days prior to admission. Regardless of the days, the WCLJ listening to the testimony concluded, based on the totality of the evidence, there is no accident arising out of the employment and no medical evidence relating the foot condition to employment.

Deference

"The WCLJ's assessment of the evidence received at the hearing, and his resolution of contradictions that may exist, is entitled to great deference, unless no support in the record exists (see Matter of Hernandez v Vogel's Collision Serv., 48 AD3d 861 [2008]; Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930 [2006])" (Matter of Barth v Hanson Aggregates, Inc., 57 AD3d 1042 [2008]).

The WCLJ, as the finder of fact, was able to observe the demeanor of the claimant as he testified under oath, and thus was in the best position to assess credibility and the probative value to be given the testimony (see Matter of Carota Enters v Jackson, 241 AD2d 667 [1997]). The courts have noted that the Board is "the sole and final arbiter of whether the testimony of a particular witness is worthy of belief" (Matter of Torres v New York Palace & Village Bar, 10 AD3d 821 [2004]); it is "vested with broad authority to decide factual issues based upon the credibility of witnesses and to draw reasonable inferences therefrom" (Matter of Kucuk v Hickey Freeman Co. Inc., 78 AD3d 1259 [2010]).

Based on the foregoing assessment, the Full Board finds that the claimant's right foot injury did not arise out of and in the course of his employment, there is no medical evidence of causally related disability, and a credibility determination of the WCLJ was proper to find that the claim should be disallowed.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision filed February 5, 2016, is AFFIMRED. No further action is planned by the Board at this time.