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In re Claim of Bordonaro

Supreme Court of New York, Third Department

March 30, 2017

In the Matter of the Claim of ROBIN C. BORDONARO, Appellant,
v.
GENESEE COUNTY SHERIFF'S OFFICE, Respondent. WORKERS' COMPENSATION BOARD, Respondent.

          Calendar Date: February 24, 2017

          Bronk & Somers, PC, Rochester (Daniel A. Bronk of counsel), for appellant.

          Nicosia Law, Rochester (Edward G. Nicosia of counsel), for Genesee County Sheriff's Office, respondent.

          Before: Garry, J.P., Lynch, Clark, Mulvey and Aarons, JJ.

          MEMORANDUM AND ORDER

          Lynch, J.

         Appeal from a decision of the Workers' Compensation Board, filed November 30, 2015, which ruled that decedent's death did not arise out of and in the course of his employment and denied claimant's claim for workers' compensation death benefits.

         Decedent, a deputy sheriff, died while asleep at home and claimant, decedent's spouse, applied for workers' compensation death benefits. Following hearings, a Workers' Compensation Law Judge established the claim. Upon review, the Workers'

         Compensation Board reversed and disallowed the claim, finding no causal relationship between decedent's death and his employment. Claimant now appeals. [1]

         We affirm. Claimant argues that the presumption of compensability pursuant to Workers' Compensation Law § 21 is applicable because decedent's initial injury occurred while he was at work (see Matter of Stevenson v Yellow Roadway Corp., 114 A.D.3d 1057, 1058 [2014]; Matter of Koenig v State Ins. Fund, 4 A.D.3d 671, 672 [2004]). The death certificate and autopsy report both noted that decedent died at home from coronary artery disease. Although decedent was observed occasionally rubbing his chest, taking antacids and acting lethargic in the days prior to his death, those observations occurred both at work and at home. Moreover, decedent was able to perform his normal activities, both during and outside of work, up to the time of his death, and there is no indication in the record that he sought medical attention at any time. In light of the lack of evidence that any injury ultimately resulting in death occurred at work, we cannot say that the Board erred in concluding that decedent was not in the course of his employment when he died and that the statutory presumption was therefore inapplicable (see Matter of Bailey v Binghamton Precast & Supply Corp., 103 A.D.3d 992, 993-994 [2013]; compare Matter of Koenig v State Ins. Fund, 4 A.D.3d at 672).

         Regarding the issue of causal relationship, "claimant bore the burden of establishing - by competent medical evidence - that a causal connection existed between decedent's death and his employment" (Matter of Bailey v Binghamton Precast & Supply Corp., 103 A.D.3d at 994; see Matter of Droogan v Raymark Indus., Inc., 59 A.D.3d 803, 804 [2009]). To that end, claimant presented the opinion of Clifford Ameduri, who is board certified in physical medicine and rehabilitation. Ameduri reviewed the death certificate, autopsy report and incident reports regarding decedent's work activities during the days leading up to his death. In his written report, Ameduri opined that decedent died from an acute myocardial infarction caused by work-related stress. During his testimony, Ameduri acknowledged that the autopsy report found that decedent had up to a 95% blockage due to atherosclerosis of the left anterior coronary artery and up to a 90% blockage due to atherosclerosis of the right and left circumflex coronary arteries and that atherosclerosis is chronic damage to the arteries that takes place gradually over time. Ameduri also noted that the autopsy report, which attributed the cause of death solely to coronary artery disease, reported evidence of only an old myocardial infarction. Ameduri testified that he believed that the cause of death was actually "an acute coronary event, which may have started the road onto a myocardial infarction, " and that it was not observable during the autopsy because decedent died too quickly for it to be "pathologically express[ed]" before death.

         "While the Board can certainly rely upon a medical opinion as to causation even if it is not absolute or certain, it is also free to disregard the medical evidence that it finds unconvincing" (Matter of Donato v Taconic Corr. Facility, 143 A.D.3d 1028, 1030 [2016] [citations omitted]; see Matter of Norton v North Syracuse Cent. School Dist., 59 A.D.3d 890, 891 [2009]). In our view, the Board was justified in rejecting, as unsupported and speculative, Ameduri's opinion that the cause of death was an acute coronary event and, therefore, its finding that claimant had not established a causal connection between decedent's employment and his death was supported by substantial evidence (see Matter of Donato v Taconic Corr. Facility, 143 A.D.3d at 1030; Matter of Bailey v Binghamton Precast & Supply Corp., 103 A.D.3d at 994). [2]

          Garry, J.P., Clark, Mulvey and Aarons, JJ., concur.

         ORDERED that the decision is ...


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