In the Matter of the Claim of NOEL O. WALLEN, Appellant,
SOFTWARE COMMUNICATION SYSTEMS INC. et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.
Calendar Date: December 14, 2017
O. Wallen, New York City, appellant pro se.
Stewart, Greenblatt, Manning & Baez, Syosset (Thomas A.
Lumpkin of counsel), for Software Communication Systems Inc.
and another, respondents.
Wexler & Wornow, PC, New York City (J. Evan Perigoe of
counsel), for Teknavo Group Inc. and another, respondents.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an amended decision of the Workers' Compensation
Board, filed August 4, 2016, which ruled, among other things,
that claimant's injury did not arise out of and in the
course of his employment and denied his claim for
workers' compensation benefits.
a software engineer, is the sole shareholder of Software
Communications Systems Inc. (hereinafter SCS) and provided
programming services to clients referred to SCS by brokers
and other third parties. On March 8, 2012, claimant suffered
a stroke while in a conference with representatives of the
Division of Human Rights regarding a discrimination
complaint. As a result, he filed a claim for workers'
compensation benefits and represented on the claim form that
he was "[e]ngaged in a business meeting" at the
time that the stroke occurred. SCS, through its workers'
compensation carrier (hereinafter collectively referred to as
the carrier), controverted the claim on a number of grounds,
and hearings were conducted before a Workers'
Compensation Law Judge (hereinafter WCLJ). At the conclusion
of these hearings, the WCLJ established the claim for a
work-related injury involving an intracerebral hemorrhage and
awarded claimant benefits.
the issuance of this decision, the carrier obtained
documentation through a Freedom of Information Law request
indicating that the meeting that claimant was attending on
the date of his stroke involved a discrimination complaint
that he had filed against a former employer. Based upon this
new evidence, the carrier submitted a supplemental
application for review before the Workers' Compensation
Board. A panel of the Board found that such documentation
should be considered in the interest of justice, rescinded
the WCLJ's decision and directed further development of
the record to determine if claimant's injury arose out of
and in the course of his employment with SCS. Following
further hearings, a WCLJ concluded that it did not and
disallowed the claim . The Board upheld the WCLJ's
decision, and this appeal by claimant ensued.
it is well settled that, in order for an injury to be
compensable, it must arise out of and in the course of
employment" (Matter of Ciullo v Gordon L. Seaman
Inc., 144 A.D.3d 1377, 1377  [citations omitted];
see Matter of Swartz v Absolut Ctr. for Nursing &
Rehab, 139 A.D.3d 1292, 1292-1293 ). This is a
factual issue for the Board to resolve, and its decision will
be upheld if supported by substantial evidence (see
Matter of Ciullo v Gordon L. Seaman Inc., 144 A.D.3d at
1377; Matter of Nichols v Hale Cr. ASACTC, 91 A.D.3d
1010, 1011 ).
testified that he had the stroke on March 8, 2012 during the
course of a stressful meeting with representatives of the
Division to resolve a discrimination complaint that he had
filed against Tekvano Group Inc., which he described as a
client of SCS. He admitted, however, that he had previously
been employed by Tekvano, and the employment relationship is
substantiated by documentation in the record. Claimant stated
that Tekvano terminated his services on July 5, 2011 for
discriminatory reasons and this provided the basis for his
discrimination complaint, as well as an action for
retaliation that he commenced against Tekvano in federal
court. Notably, claimant filed the complaint and legal action
in his individual capacity, not as a representative of SCS.
In view of the foregoing, claimant was clearly engaged - at
the time that he had his stroke - in a personal quest to
obtain compensation from Tekvano for its alleged
discriminatory actions. Although he had ceased working for
Tekvano for eight months and was engaged in servicing clients
for SCS at this time, his participation in the conference did
not involve SCS or inure to its benefit. Moreover, to the
extent that claimant testified that he had contact with a
potential client of SCS both before and after the conference
in an effort to establish a nexus with SCS, his testimony was
inconsistent and presented a credibility issue for the Board
to resolve (see Matter of Xie v JP Morgan Chase, 150
A.D.3d 1360, 1363 ; Matter of Albert v Miracle
Makers of Bedford Stuyvesant HFDC, Inc., 13 A.D.3d 925,
926 ). Accordingly, inasmuch as substantial evidence
supports the Board's finding that claimant's stroke
did not arise out of and in the course of his employment with
SCS, we decline to disturb its decision.
extent that claimant raises the issue of causation, given
claimant's multiple and independent risk factors for a
stroke, as well as the record medical evidence and testimony
establishing that the source of his stress on the day in
question stemmed from his meeting with the Division and not
from any purported meetings with SCS clients, there is
insufficient medical evidence to establish a causal
relationship between his employment with SCS and his injury
(see Matter of Qualls v Bronx Dist. Attorney's
Off., 146 A.D.3d 1213, 1214-1215 , lv
denied 29 N.Y.3d 906');">29 N.Y.3d 906 ). We have considered
claimant's many remaining contentions and find them to be
P.J., Lynch, Aarons and Pritzker, JJ., concur.
that the amended decision is ...