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Case # G1590848
Date of Accident: 03/13/2016
District Office: NYC
Employer: Department of Correction
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: W0721680752
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: Rella & Associates PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 1, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant suffered a causally related injury to the left knee.

The Workers' Compensation Law Judge (WCLJ) found the claimant was not credible and disallowed the claim.

The Board Panel majority reversed the WCLJ and established the claim for the left knee.

The dissenting Board Panel member would affirm the WCLJ decision.

The self-insured employer (SIE) filed an application for Mandatory Full Board Review on March 1, 2017, urging the Full Board to adopt the opinion of the dissenting Board Panel member because the claimant failed to meet his burden of establishing causal relationship.

The claimant filed a rebuttal on March 24, 2017, arguing that the WCLJ decision finding the claimant not to be credible was not based on the evidence, as there is uncontroverted medical evidence and uncontroverted testimony establishing the left knee was injured. The claimant maintains he did not initially realize his left knee was injured, but told his physician less than two months afterwards. As such, the claimant urges the Full Board to adopt the opinion of the Board Panel majority.

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

FACTS

This case was previously established for the left arm and left wrist/hand. Claimant seeks to amend the claim to include the left knee.

In a C-3 (Employee Claim) filed April 1, 2016, the claimant, a corrections officer, alleged he injured his left arm and left hand on March 13, 2016, while breaking up a fight between inmates.

A report dated March 13, 2016, from New York Presbyterian Hospital indicates the claimant was treated for left wrist pain with numbness and tingling to the left upper extremity after an altercation at work. In a report dated March 28, 2016, claimant's treating physician, Dr. Jakobsen, reported the claimant injured his left arm and left shoulder on March 13, 2016, when he broke up a fight between inmates. Medical reports from March 18, 2016, until April 15, 2016, reveal the claimant underwent physical therapy for the left arm, left wrist and left shoulder, but make no mention of a knee injury.

In a report dated April 18, 2016, Dr. Jakobsen stated that the claimant reported that his left knee began to hurt the week after his accident. Dr. Jakobsen noted the claimant had an antalgic gait, added the left knee as a site of injury, prescribed physical therapy and an MRI of the left knee.

An April 22, 2016, MRI of the claimant's left knee showed there was joint effusion, with no discrete tendon or ligament disruption.

By administrative decision dated June 6, 2016, the Board established this claim for the left arm and left wrist/hand, determined the average weekly wage and noted the disability was less than seven days.

In a letter dated August 16, 2016, Dr. Jakobsen wrote that the claimant presented for a reevaluation on April 18, 2016, and indicated that his left knee began hurting one week after he saw Dr. Jakobsen initially. Dr. Jakobsen explained the claimant presented with decreased range of motion, tenderness and a positive Apley's test, so Dr. Jakobsen prescribed an MRI scan of the left knee. Dr. Jakobsen concluded his letter that within a reasonable degree of medical certainty, the work-related accident was the producing cause of the claimant's injuries.

By RFA-1LC (Request for Further Action by Legal Counsel) dated August 30, 2016, the claimant's attorney requested that the case be amended to include the left knee per the medical report from Dr. Jakobsen dated August 16, 2016.

By notice of decision dated October 28, 2016, the WCLJ found prima facie medical evidence for the left knee based on Dr. Jakobsen's August 16, 2016, medical report, and scheduled the following hearing for the testimony of the claimant concerning the mechanism of the injury.

At the hearing held on November 22, 2016, the claimant testified that on March 13, 2016, there was a fight between two inmates, his "hand got wrapped up in between two inmates' bodies and sort of turned and extended. I went down." He was sent to the clinic because his left arm went limp, and from there he went to the hospital by ambulance. His left knee began to get stiff and feel like pins and needles about one and one-half weeks after the incident at work. He notified his physician and was told he would need an MRI. The claimant also testified he was contacted by the imaging company for the MRI of the left arm and the imaging company asked whether there were any other body parts that were injured and he told them he had also injured his left knee so the imaging company sent paperwork for the left arm and left knee. The claimant notified Dr. Jakobsen that the insurance company added his left knee because "it starts to get difficult for me to sit down, and you know, sort of walk, and when I sit, my leg sort of gets numb. Sort of halfway dead." The claimant confirmed he had no other accidents before or after the work injury on March 13, 2016.

On cross-examination, the claimant testified he did not initially report an injury to the left knee, but about two weeks after the initial injury, he began to have "little issues" with the knee. He never spoke to anyone at the law department or Department of Corrections about his left knee.

During questioning by the WCLJ, the claimant testified his knee began to bother him about one and one-half weeks after the initial injury, and he first treated with Dr. Jakobsen on March 28, 2016, which was about two weeks after the initial injury. The claimant testified that the first time he treated with Dr. Jakobsen, his knee was asymptomatic, but the second time he treated with Dr. Jakobsen, his knee was stiff and sore when he sat down.

At the conclusion of the hearing, the WCLJ found the claimant's testimony that he injured his left knee on the date of accident was inconsistent and not credible, and disallowed the claim for the knee. The WCLJ also noted the findings of the MRI of the knee were not significant. The findings were memorialized in a decision filed November 28, 2016.

The claimant filed a request for administrative review, arguing that the WCLJ decision was not based on the evidence, and the WCLJ's finding that the claimant's injury was not severe enough was unconscionable. The claimant maintains that the medical evidence showed the claimant had joint effusion in the left knee. The claimant argues he injured his left arm, hand, wrist and knee in the incident at work on March 13, 2016, but the claimant's knee was not symptomatic until his second examination by Dr. Jakobsen.

The SIE filed a timely rebuttal arguing that the WCLJ decision should be affirmed.

LEGAL ANALYSIS

"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]). 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 issue is credibility and the WCLJ reviewed the medical reports, heard the testimony and determined the claimant's testimony that he injured his knee during the altercation at work on March 13, 2016, was not credible. The C-3 filed on April 1, 2016, only references an injury to the left arm and wrist that occurred on March 13, 2016. The claimant testified he noticed an issue with his knee one and one-half weeks after the work accident, but did not report a knee injury to Dr. Jakobsen at his examination held on March 28, 2016, and first reported it at the second examination held on April 18, 2016. In that report, Dr. Jakobsen noted the claimant reported his knee began to hurt one week after the accident. Furthermore, although the claimant testified he broke up a fight between inmates and he went down, he never explained how his knee was injured or whether he landed on his knee when he fell to the ground.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that the claimant did not suffer a work-related injury to his knee on March 13, 2016, and the claim for the left knee is disallowed.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed November 28, 2016, is AFFIRMED. No further action is planned by the Board at this time.