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Case # G1377050
Date of Accident: 06/14/2015
District Office: NYC
Employer: New York City Transit Authority
Carrier: NYC Transit Authority
Carrier ID No.: W848006
Carrier Case No.: TA201501238
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: Pasternack Tilker Ziegler Walsh Stanton & Romano LLP
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 September 28, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether there is sufficient evidence to establish the claim for post-traumatic stress disorder (PTSD);
  2. whether the claim should have been disallowed pursuant to Workers' Compensation Law (WCL) § 18; and
  3. whether the employer should have been reimbursed for the period from June 14, 2015, through July 12, 2015.

The Workers' Compensation Law Judge (WCLJ) established the claim for work-related PTSD and awarded the claimant temporary total benefits from June 14, 2015, to August 3, 2015.

The Board Panel majority reversed, disallowing the claim, finding that the claimant did not develop PTSD as a result of being sexually harassed at work.

The dissenting Board Panel member would have affirmed the establishment of the claim, but would have held awards for the period from June 14, 2015, through July 12, 2015, in abeyance pending development of the record on the issue of employer reimbursement.

The claimant filed an application for Mandatory Full Board Review on October 27, 2016, arguing that the WCLJ was in the best position to assess the credibility of the witnesses and properly concluded that the claimant's testimony was most credible. The claimant argued that the self-insured employer (SIE) failed to rebut the presumption set forth in WCL § 21(1) with credible evidence.

The SIE filed an untimely rebuttal which will not be considered.

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

FACTS

The claimant filed a C-3 (Employee Claim) on July 9, 2015, indicating that while at work as a bus operator, her dispatcher made inappropriate remarks about her body, and a couple of fellow bus drivers subsequently started to bully her because she had made a complaint against the dispatcher, causing her to suffer from PTSD. The claimant also indicated that she orally notified her employer of the incident on April 20, 2015.

The SIE controverted the claim.

A medical report was filed by Dr. Pringle for an examination on June 22, 2015. The claimant advised Dr. Pringle that her supervisor made some comments about her clothing along with some sexually inappropriate remarks and gestures that led her to report her supervisor to her employer. The claimant also said that she felt she was being harassed by her co-workers and supervisors because she had complained about her supervisor. The claimant indicated that she was admitted to the hospital for two days as she was suicidal and had taken 24 pills of Advil. The doctor diagnosed the claimant with causally related PTSD and found her to be totally disabled.

A medical report was filed by Dr. Isaacson, a psychologist, who evaluated the claimant on July 6, 2015. The claimant advised the doctor that on April 20, 2015, her supervisor made some sexually inappropriate remarks to her. The claimant also said that she considered suicide in June 2015 and was hospitalized from June 14, 2015, to June 16, 2015, as the result of psychiatric problems triggered by the incident. The doctor noted that the claimant was cooperative and calm, but her mood was depressed and emotions were circumscribed and that despite the suicide attempt, she had good abstract reasoning ability. Dr. Isaacson found that the claimant was suffering from PTSD as the trauma had undermined her sense of safety and predictability, along with a shattered sense of security.

The claimant was examined by the carrier's psychiatric consultant, Dr. Bienenfeld, on October 13, 2015. In his IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Bienenfeld stated that claimant reported being repeatedly sexually harassed by a co-worker in April 2015 and that despite her complaints to management, the individual was still working. The claimant also told Dr. Bienenfeld that in June 2015, she got so depressed about the events, that she took an overdose of Advil and was hospitalized for two days in a psychiatric ward. The doctor noted that the claimant was well adjusted and did not appear to have any cognitive impairment. The doctor found that the claimant did not suffer from a causally related psychiatric disability, had reached maximum medical improvement and may return to work as a bus operator.

Dr. Isaacson was deposed on November 10, 2015, and testified that he initially treated the claimant on July 6, 2015, and that the claimant indicated that an incident occurred on April 20, 2015, in which a male supervisor made inappropriate sexual remarks to the claimant that shocked her. Claimant could not stop thinking about the incident. Dr. Isaacson found the claimant to be totally disabled when he examined her in July 2015. Dr. Isaacson testified that PTSD is typically triggered by an actual threat or a perceived threat to the individual's physical integrity. The claimant attempted suicide in June 2015 due to the incident. Claimant had previously attempted suicide in 2009, but the doctor did not believe the June 2015 suicide attempt was related to the 2009 attempt. A subsequent consultation was held on August 3, 2015, wherein the claimant reported that the individual who had made the remarks was no longer at the facility where she worked, and she was feeling better. The claimant was ready to resume work and her condition had resolved.

A reimbursement request was filed by the SIE on November 20, 2015, for wages paid to the claimant from June 14, 2015, to July 12, 2015, in the amount of $3,815.20.

The deposition testimony of Dr. Bienenfeld was taken on November 20, 2015. The doctor testified that at the time he examined the claimant in October 2015, she was not suffering from any current psychiatric problems as the claimant's mental status was positive. The doctor said that the individual who perpetrated the sexual harassment was still at the workplace, but the claimant reported no problems and had no anxiety or panic attacks regarding the individual. The doctor also said that a PTSD condition could be caused by a threat or a possibility of a threat to the individual and that sexual harassment could qualify as such a threat if the harassment was severe enough. The doctor conceded that he was not given any pertinent medical evidence of treatment prior to his examination and could not determine if the claimant had PTSD and that it had resolved by the time he examined the claimant.

At a hearing held on November 23, 2015, the claimant testified by telephone that she returned to work on August 3, 2015, after being out of work beginning on June 14, 2015, due to a mental breakdown that required her to be hospitalized for two days. Her mental breakdown was the result of being sexually harassed by a dispatcher at work on April 20, 2015. On that date, the dispatcher reprimanded the claimant at the depot for wearing a pink vest. When she explained the she did not actually wear the pink vest on the bus, and that she only wore her shirt, tie and badge, the dispatcher replied that she would freeze her "tits" and "ass" off. The dispatcher then allegedly made remarks about her "tits" bouncing up and down and simulated the sounds of the claimant's breast going up and down as she drove the bus. The claimant indicated that in the months prior to the April 20, 2015, incident, the dispatcher previously commented about her wearing the pink vest. The claimant immediately informed her union representative about what had just transpired on April 20, 2015. She was upset and was crying at the time she reported the incident to her union representative and stayed in the union office until her tour ended. She then filed a written complaint with the employer. The claimant explained that the dispatcher was removed from work for two weeks and during that time she was fine. However, upon the dispatcher's return to work, she asked that he be taken back out of work until the investigation was completed. Her request was denied as there wasn't sufficient evidence of sexual harassment to keep him off of the job. It was at this time that her co-workers began to question the claimant and accuse her of making false claims about the dispatcher. She was upset that rumors were swirling concerning an investigation that was supposed to be confidential. This treatment occurred nearly every day from the beginning of June 2015 until June 14, 2015, when she attempted suicide. She did not go back to work until August 2015. The claimant admitted to a previous hospitalization that occurred when she was 16 due to thoughts of suicide that resulted from being in an abusive relationship. Claimant stated that she had no intervening suicide attempts. The claimant testified that her father informed the employer about her hospitalization, and that she completed a report upon returning to work. She did not comment to anyone at work concerning the sexual harassment due to the ongoing investigation. She received a letter dated October 9, 2015, indicating that the employer concluded that there was insufficient evidence indicating that the dispatcher violated the sexual harassment policy. Claimant did not pursue an appeal of that determination and she is presently working along with the dispatcher. On re-direct the claimant stated that her interaction with the dispatcher occurred after she checked in with security and was within two feet of the security desk.

On cross-examination, the claimant testified that no one overheard the conversation that she had with the dispatcher on April 20, 2015. After informing her union representative of the incident, she was instructed to and did inform the General Supervisor what had transpired with the dispatcher. The claimant reiterated that she spent the rest of her shift in the union office. Claimant continued to work from the day after the incident until she was hospitalized in June. She filed a complaint against the supervisor on April 22, 2015. On October 11, 2015, she was informed by her employer that they had concluded that there was no reasonable cause to find that the dispatcher violated the Transit Authority's sexual harassment policy.

At the November 23, 2015, hearing, the employer's assistant chief officer of equal employment opportunity (EEO) investigations testified that he assigned the investigation of the claimant's complaint to an investigator that he supervises. As part of the investigation, the claimant, the dispatcher and two other witness were interviewed and video footage was reviewed. An investigation report was prepared as a result of the investigation. The ultimate conclusion of the investigation was that the dispatcher did not violate the employer's sexual harassment policy or any other discriminatory harassment policy. That the dispatcher has no prior complaints lodged against him since starting employment with the employer in 1994 was noted.

On cross-examination, the assistant chief officer of EEO investigations testified that the video that was reviewed contained no audio. The claimant's union representative, who she spoke with immediately after the incident, was not interviewed, but was present when the claimant was interviewed. The explanation provided for not interviewing the claimant's union representative was that he was not present when the incident occurred. The witness could not recall whether he was present for the entire interview of the claimant. When asked to clarify whether the finding reached following the investigation meant that the dispatcher did not engage in sexual harassment of the claimant, the witness responded that the finding meant that there wasn't sufficient credible evidence to substantiate the allegations.

At the November 23, 2015, hearing, the employer's counterterrorism liaison testified that he was asked to pull video from April 20, 2015, from 8:30 AM to 9:30 AM, at the depot that claimant worked at. The witness pulled the requested video and made a copy to a disc. On cross-examination, the witness confirmed that the video that was pulled contains no audio, and that the video is pulled from two different cameras in the depot. There is a total of two hours on the video, one hour from the first camera, and one hour from the second camera.

At a hearing held on November 30, 2015, the SIE's dispatcher (the subject of the claimant's sexual harassment complaint) testified that he is responsible for supervising the bus drivers, and that he has held this job for 14 years. He recalls having a brief conversation with the claimant on April 20, 2015. He observed the claimant wearing a bright red vest on a number of occasions beginning in January of 2015, but did not want to pull her off her bus to address the matter. On April 20, 2015, he addressed the fact that she was wearing a bright red vest "in the interests of the people." The claimant appeared to be ignoring the dispatcher, but responded to his concerns by stating that she would remove the vest when she got on the bus. The dispatcher testified that he was concerned she would "freeze" as the temperature was very cold that morning. The dispatcher denied stating that the claimant would freeze her "ass" or her "tits" off, specifically stating that he mentioned his concern that she would freeze, but didn't say "ass" and mentioned "nothing about breasts." The dispatcher testified that he didn't know the word "tits" on April 20, 2015, but has since learned the meaning of the word.

On cross-examination, the dispatcher testified that claimant was required to wear a uniform and that a bright colored vest was not part of the uniform. Between January and April of 2015, claimant wore a "popping in the eyes color" vest 8 to 10 times. He did not write a formal complaint each time he observed the claimant wearing this vest, as doing so is discretionary. He spoke with her one time in January to address the vest issue. He did write the claimant up for the April 20, 2015, uniform violation. He did not previously report the claimant's uniform issues to his supervisors. The dispatcher testified that he was not familiar with the term "tits" despite the fact that he has been in America for 25 years. This word is not used by the drivers and is not "presented to people in the movies." He was removed from the depot for a month while the claimant's complaint was investigated. He denied mimicking the claimant on the bus during his conversation with her on April 20, 2015. The conversation he had with the claimant was witnessed by others. The dispatcher conceded that he did make a comment (to the claimant) about another bus driver's braids, a fact that he denied when interviewed by the employer in connection with this investigation. On re-direct, the dispatcher testified that he was informed by letter that he was "exonerated" of the sexual harassment allegation made by the claimant.

Video evidence was shown at a hearing held of December 28, 2015. The pertinent portion of the video evidence revealed that on April 20, 2015, the claimant was wearing a vest in the bus depot and the remainder of the video showed the sidewalk outside the depot.

At the hearing held on December 28, 2015, an EEO investigator for the employer testified that he was assigned to investigate a complaint made by the claimant against the dispatcher. He conducted an investigation and submitted a report to the employer dated October 9, 2015, concluding that there was no reasonable cause to believe that the dispatcher had violated the employer's sexual harassment policy. Along with the claimant and the dispatcher, the investigator interviewed a witness to the incident. The witness informed the investigator that the dispatcher reprimanded the claimant for her attire, but did not make any remarks of a sexual nature. After looking at the video, the investigator was able to determine that the witness was nearby when the discussion occurred.

On cross-examination, the EEO investigator testified that he did not see the need to interview the claimant's union representative as he had no first-hand knowledge of what occurred. He made this determination in conjunction with his supervisor. The investigator confirmed that the dispatcher never previously wrote the claimant up for her attire. He did not recall if the dispatcher informed him that claimant violated the rule concerning attire on 8 to 10 occasions prior to April 20, 2015. In the course of his investigation, the claimant informed him that the dispatcher had made comments about another female employee's hair on a separate occasion. When questioned concerning this comment, the dispatcher denied ever having made such a comment. The dispatcher also denied making the "freeze your tits and ass" comment to the claimant. He conceded that the witness, who indicated that the dispatcher did not make any comments of a sexual nature, did not witness the entire conversation between the claimant and the dispatcher.

At the conclusion of the December 28, 2015, hearing, the WCLJ established the claim for causally related PTSD. The WCLJ found the claimant to be most credible, concluding that the statement made by the dispatcher, along with the gestures, constituted sexual harassment. The WCLJ found the testimony of the dispatcher to be incredible, in part due to his unbelievable statement that he has never heard the word "tits" used before, despite being fluent in English and being in the United States for over 20 years. The WCLJ also based his finding that the dispatcher was incredible on the fact the he denied ever having made a comment about a co-worker's hair to the EEO investigator, only to admit that he made this comment when he testified before the Board. The WCLJ also questioned the validity of the employer's investigation of the incident as the EEO investigator failed to interview the claimant's union representative, who the WCLJ felt had relevant information to share. The video relied upon by the employer was also largely irrelevant, other than showing that the claimant did wear a pink or red vest on the date in question. It was also appropriate for the claimant to be upset by the fact that the investigation of this sensitive and confidential investigation was leaked to co-workers, who then taunted her. The WCLJ made awards to the claimant at the temporary total disability rate from June 14, 2015, to August 3, 2015. The SIE's attorney noted his exception to the establishment of the claim and requested reimbursement from awards. The claimant's attorney was awarded an attorney's fee in the amount of $780.00.

The findings and awards made at the December 28, 2105, hearing were memorialized in a decision filed on January 5, 2016, which was subsequently amended on January 14, 2016, to release the fee to claimant's attorney. The SIE requested administrative review of the WCLJ decision, arguing that the claim should be disallowed and that, in the alternative, awards for the period from June 14, 2015, through July 12, 2015, should be reimbursed to the employer. In her rebuttal, claimant argued that the WCLJ decision should be affirmed.

LEGAL ANALYSIS

Accident - PTSD

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]).

Here, as the issue is whether the incident claimant alleges caused her PTSD actually occurred, claimant cannot rely on the WCL § 21(1) presumption.

A mental injury caused solely by psychic trauma is compensable as a matter of law when the circumstances constitute an accident within the meaning of the Workers' Compensation Law (Matter of Haydel v Sears, Roebuck & Co., 106 AD2d 759 [1984]). A mental injury need not be caused by a discrete identifiable psychic trauma, but can result from emotional stress extending over a period of months (Matter of Velazquez v Triborough Bridge & Tunnel Auth., 156 AD2d 922 [1989]). Not all mental injuries suffered on the job are compensable, and in order for a claim to be viable, the stress must be greater than that which occurs in the normal work environment (Matter of Troy v Prudential Ins. Co., 233 AD2d 635 [1996]).

Claimant's allegations, if found to be credible, clearly constitute stress greater than that which occurs in the normal work environment. The WCLJ who heard the testimony of the witnesses 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]).

It does not appear to be in dispute that claimant immediately brought the incident to the attention of her union representative and filed a complaint with the SIE which prompted an investigation, which bolsters claimant's credibility. Also supporting the finding that claimant's testimony was credible was the dispatcher's confused and incredible testimony, including his assertion that he was unfamiliar with the term "tits" as it is "not used by the drivers and is not presented to people in the movies." The dispatcher also conceded on cross-examination that he did at a prior time make a comment to the claimant about another employee's hair style, a fact the he denied when questioned by the SIE's EEO investigator.

That the SIE's internal investigation resulted in a finding that there was insufficient evidence that the dispatcher violated the terms of the SIE's sexual harassment policy does not warrant a finding that the claimant was not subjected to sexually inappropriate comments and gestures by the dispatcher. The investigation was flawed in that the investigator failed to seek information from a probative source, the claimant's union representative, and appeared to entail interviews only of individuals brought to his attention by SIE management. The investigator also testified to taking into consideration the lack of any prior sexual harassment complaints being filed against the dispatcher while employed by the SIE. Also, the SIE's determination was based solely on the language explicitly set forth in its sexual harassment policy.

While the EEO investigator testified the he interviewed an employee who may have witnessed the incident, the SIE inexplicably failed to produce this alleged witness before the Board for testimony.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant's testimony was credible, that claimant experienced stress greater than that which occurs in the normal work environment, and that based of the credible medical evidence presented by the claimant's treating providers, that the claimant sustained causally related PTSD.

Notice

"Workers' Compensation Law § 18 requires claimants seeking benefits to provide their employers with written notice of a compensable injury 'within thirty days after the accident causing such injury' (see Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784 [2005]) ... Failure to provide such notice bars any claim, unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced (see Workers' Compensation Law § 18)" (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402 [2009]).

Here, the claimant credibly testified that she filed a complaint with the SIE concerning the dispatcher's actions on April 20, 2015, the date the incident occurred. The Full Board finds that the SIE had actual knowledge of the incident which resulted in claimant's injury is sufficient to meet the notice requirement (Matter of Logan v New York City Health & Hosp. Corp., 139 AD3d 1200 [2016]).

Reimbursement

The SIE filed a timely reimbursement request. Therefore, awards for the period from June 14, 2015, through July 12, 2015, are held in abeyance pending development of the record on the issue of employer reimbursement.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed January 5, 2016, as amended on January 14, 2016, is MODIFIED to hold awards for the period from June 14, 2015, through July 12, 2015, in abeyance pending development of the record on the issue of employer reimbursement. The decision is affirmed in all other respects. The case is continued.