Calendar Date: December 14, 2017
Shouldice & Rosen, Rockville Center (Patrick M. Conroy of
counsel), for appellant.
William O'Brien, State Insurance Fund, New York City
(Janis M. Riekstins of counsel), for Mountain States Rosen
LLC and another, respondents.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
July 6, 2016, which, among other things, ruled that claimant
did not sustain an injury arising out of and in the course of
his employment and denied his claim for workers'
15, 2015, claimant, a butcher who worked in the Bronx, met
his supervisor around 3:30 a.m. in order to drive to
Pennsylvania for a special assignment of instructing a group
of workers on the proper method to cut meat. Following the
instructional demonstration, which lasted approximately from
7:15 a.m. until 2:00 p.m., claimant went to the locker room
to change his clothes, at which point he suffered an ischemic
stroke. Claimant applied for workers' compensation
benefits asserting that the ischemic stroke was
causally-related to his employment. The employer and its
workers' compensation carrier controverted the claim.
Following a hearing, the Workers' Compensation Law Judge
ruled that there was a causal relationship between
claimant's injury and his employment. Upon review,
however, the Workers' Compensation Board reversed and
disallowed the claim, finding that there was insufficient
evidence to establish that claimant's injury arose out of
and in the course of his employment. Claimant appeals.
to the extent that claimant asserts that he was entitled to
the presumption of compensability set forth in Workers'
Compensation Law § 21, the applicability of such
presumption does not completely relieve him of the burden of
establishing that his injury arose out of and in course of
his employment (see Matter of Ciullo v Gordon L. Seaman
Inc., 144 A.D.3d 1377, 1378 ; Matter of Bond v
Suffolk Transp. Serv., 68 A.D.3d 1341, 1342 ).
Moreover, "we need not consider the applicability of
[this statute] inasmuch as the determination as to causal
relationship, or the lack thereof, in this matter was not
based upon the presumption contained therein but, instead,
upon the medical evidence and testimony adduced as part of
the underlying hearing" (Matter of Donato v Taconic
Corr. Facility, 143 A.D.3d 1028, 1029 ).
to the merits, "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 at 1377). Such factual determination is
within the province of the Board and such decision will not
be disturbed if supported by substantial evidence (see
id. at 1377; Matter of Nichols v Hale Cr.
ASACTC, 91 A.D.3d 1010, 1011 ).
medical expert, Lester Ploss, opined that claimant's
stroke was causally-related to his employment given that, on
the day of his stroke, claimant had a prolonged lack of
sleep, was under time constraints to drive to Pennsylvania
and performed very arduous labor while teaching a class. The
record, however, establishes that on a regular work day,
claimant awoke around 2:00 a.m., drove to work in the Bronx
and worked from approximately 4:00 a.m. until 1:30 p.m.
cutting meat. Although claimant drove to Pennsylvania on the
day in question, the record establishes that he worked
substantially the same hours as a normal work day. In
addition, the general manager testified that the drive to
Pennsylvania was divided and included stops along the way.
Furthermore, although claimant did not typically teach, the
manner of cutting meat was substantially similar to his
regular duties in the Bronx, where he did assist others in
their technique of cutting meat. Naunihal Singh, a
neurologist who reviewed claimant's medical records,
opined that claimant's stroke was not related to any
aspect of employment but was a direct result of
claimant's preexisting medical conditions, including
hypertension, cognitive heart failure, cardiomegaly and an
irregular heart. The Board's decision was based upon the
credibility, or lack thereof, of the medical testimony with
regard to the events leading to claimant's stroke.
Inasmuch as this Court defers to the credibility
determinations of the Board with regard to medical evidence
and witness testimony, we find that there is substantial
evidence in the record to support the Board's decision
that claimant's stroke did not arise out of or in the
course of his employment (see Matter of Ciullo v Gordon
L. Seaman Inc., 144 A.D.3d at 1378; Matter of Pengal
v Chloe Foods Corp., 111 A.D.3d 1030, 1031 ;
Matter of Mayers v Kings County Hosp., 29 A.D.3d
1239, 1240 ). As such, the Board's decision will
not be disturbed.
P.J., Lynch, Clark and ...