Calendar Date: November 17, 2017
Buckley, Mendleson, Criscione & Quinn, PC, Albany
(Brendan G. Quinn of counsel), for appellant.
Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of
counsel), for General Electric and another, respondents.
Before: Peters, P.J., Egan Jr., Lynch, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
March 10, 2016, which ruled that claimant's injury did
not arise out of and in the course of his employment and
denied his claim for workers' compensation benefits.
26, 2014, claimant was moving a piece of equipment known as a
stator bar horse when he allegedly sustained an injury to his
right shoulder. According to claimant, this incident was
witnessed by a fellow employee. Claimant last worked for the
employer during the first week of July 2014 and was
terminated from his position shortly thereafter for reasons
unrelated to the alleged injury. In August 2014, claimant
filed a claim for workers' compensation benefits, which
the employer and its workers' compensation carrier
controverted â contending, among other things, that
claimant's injury did not arise out of and in the course
of his employment. Following a hearing and the deposition of
claimant's treating physician, a Workers'
Compensation Law Judge established the claim for a
work-related injury to claimant's right shoulder. Upon
review, the Workers' Compensation Board reversed, finding
that claimant's testimony was not credible and deeming
the timing of the underlying claim to be "suspect."
Specifically, the Board noted that claimant, who did not
initially report the incident to the employer, neither sought
treatment for the alleged injury nor filed a claim for
workers' compensation benefits until after he had been
terminated from his employment for falsifying certain
documents to support unrelated lost time from work. This
appeal by claimant ensued.
affirm. "Whether a compensable accident occurred
presents a question of fact for the Board, and the resolution
thereof will be upheld if supported by substantial
evidence" (Matter of Caballero v Fabco Enters.,
77 A.D.3d 1028, 1029  [citations omitted], lv
dismissed 16 N.Y.3d 780');">16 N.Y.3d 780 ; see Matter of
Losardo v Baxter Healthcare Corp., 126 A.D.3d 1164, 1164
; Matter of Rolleri v Mastic Beach Ambulance Co.,
Inc., 106 A.D.3d 1292, 1292 , lv denied
21 N.Y.3d 865');">21 N.Y.3d 865 ; Matter of Klamka v Consolidated
Edison Co. of N.Y., Inc., 84 A.D.3d 1527, 1528 ).
In this regard, "the Board is the sole arbiter of
witness credibility" (Matter of Dixon v Almar
Plumbing, 111 A.D.3d 1230, 1231  [internal
quotation marks, brackets and citations omitted]).
testified that, as he was "moving the horses" on
the day in question, he felt "a pull in [his right]
shoulder." Claimant acknowledged that he "never
reported the injury to anybody, " that he continued
working following this incident and that he neither sought
medical treatment nor filed a claim for workers'
compensation benefits until after he had been fired for
unrelated reasons - namely, falsifying medical excuses, juror
service documents and bereavement forms in order to obtain
time off from work. Additionally, although the C-3 claim form
bearing claimant's signature indicated that
claimant's accident was witnessed by a coworker and that
he reported the incident to his supervisor, claimant provided
contrary testimony at the hearing, and the relevant coworker
testified that claimant never informed him that any such
injury occurred. There is no question that "the Board is
vested with broad authority to resolve issues of credibility
and draw reasonable inferences from record evidence"
(Matter of Caballero v Fabco Enters., 77 A.D.3d at
1029) and, ultimately, the Board simply did not credit
claimant's testimony. Upon reviewing the record as a
whole, we are satisfied that the Board's finding that no
work-related accident occurred is supported by substantial
evidence and, as such, will not be disturbed (see Matter
of Hill v Shoprite Supermarkets Inc., 140 A.D.3d 1564,
1564-1565 ; Matter of Siennikov v Professional
Grade Constr., Inc., 137 A.D.3d 1440, 1443 ;
Matter of Losardo v Baxter Healthcare Corp., 126
A.D.3d at 1165; Matter of Caballero v Fabco Enters.
77 A.D.3d at 1029).
Peters, P.J., Egan Jr., Lynch and ...