Calendar Date: January 9, 2018
Habberfield Kaszycki, LLP, Buffalo (Melissa Habberfield of
counsel), for appellants.
Silverman, Silverman, Seligman, PC, Schenectady (James E.
Duffy of counsel), for Lawrence Dupont, respondent.
T. Schneiderman, Attorney General, New York City (Nina M. Sas
of counsel), for Workers' Compensation Board, respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
October 5, 2016, which ruled that claimant sustained certain
causally-related injuries and continued his case for further
development of the record.
a hazardous materials truck driver, filed a claim for
workers' compensation benefits contending that he had
sustained work-related injuries to his low back and neck on
November 23, 2015 while he was transporting a liquid chemical
load in a hollow-bore trailer . According to claimant,
as he was traveling on an interstate highway, a passenger
vehicle cut him off, causing him to apply the foot brake on
the truck and the trolley brake for the trailer and
decelerate approximately 5 to 10 miles per hour; as he did
so, the liquid in the trailer surged forward, knocking
claimant "forward and then back into [his] seat."
The offending passenger vehicle then moved into another lane,
and claimant released the brakes and continued on his
journey. At the time of the incident, which lasted less than
one second, claimant felt "a pop" in his neck and
thereafter experienced "a little snapping" when he
turned his head. Claimant reported the incident to the
employer's operations manager one week later - following
the intervening Thanksgiving holiday - and sought medical
treatment on his last day of work - December 6, 2015.
response to claimant's reports of injury, the employer
and its workers' compensation carrier (hereinafter
collectively referred to as the carrier) filed a prehearing
conference statement controverting the claim - citing, among
other things, vehicle log records believed to be inconsistent
with claimant's account of the incident. Claimant filed a
claim for workers' compensation benefits in March 2016.
Following a hearing, an independent medical examination and
the deposition of claimant's treating physician, a
Workers' Compensation Law Judge disallowed the claim -
discrediting claimant's account of the incident and
finding insufficient medical evidence of causally-related
injuries. The Workers' Compensation Board disagreed -
finding that claimant sustained causally-related injuries to
his low back and neck as a result of the November 2015
incident and restored the case to the trial calendar for
further development of the record as to the issues of average
weekly wage and causally-related lost time. This appeal by
the carrier ensued.
affirm. "A claimant bears the burden of establishing, by
competent medical evidence, a causal relationship between an
injury and his or her employment" (Matter of
Poverelli v Nabisco/Kraft Co., 123 A.D.3d 1309, 1310
 [internal quotation marks and citations omitted];
see Matter of Qualls v Bronx Dist. Attorney's
Off., 146 A.D.3d 1213, 1214 , lv denied
29 N.Y.3d 906');">29 N.Y.3d 906 ; Matter of Granville v Town of
Hamburg, 136 A.D.3d 1254, 1255 ). "Where
medical proof is relied upon to demonstrate the existence of
a causal relationship, it must signify a probability of the
underlying cause that is supported by a rational basis and
not be based upon a general expression of possibility"
(Matter of White v House, 147 A.D.3d 1173, 1174
 [internal quotation marks and citations omitted];
see Matter of Richards v Massena Cent. Schs., 150
A.D.3d 1349, 1350 ; Matter of Hansen v Saks Fifth
Ave., 145 A.D.3d 1257, 1257 ).
the carrier argues - and the Workers' Compensation Law
Judge found - that claimant's account of the incident was
inconsistent with the log generated by the truck's
onboard computer software, we disagree. Claimant testified at
the hearing that, when he applied the brakes, the
truck/trailer decelerated approximately 5 to 10 miles per
hour, and one of the employer's representatives, who was
familiar with the software utilized by the truck's
onboard computer, testified that the software would register
a "sudden stop" only if a deceleration threshold of
"nine miles per hour in a second" was met. As the
employer's representative candidly acknowledged, whether
a sudden stop would be recorded by the computer "would
depend on how quickly [claimant] decelerated. If he slowly
decelerated five miles per hour[, ] that would not have been
caught, but if it was a quick deceleration of nine miles per
hour per second, that would have been recorded." In
light of such testimony, the absence of a recorded event,
i.e., a sudden stop, on the truck's computer does not
give rise to an inconsistency between claimant's account
of the incident and the documentary evidence, and the Board,
as "the sole arbiter of witness credibility, " was
entitled to credit claimant's account of the
injury-producing event (Matter of Harrison v Town of
Cheektowaga, 155 A.D.3d 1286, 1288  [internal
quotation marks and citation omitted]; see Matter of
Krysinski v Nesco Resource/ETS Staffing, 140 A.D.3d
1569, 1570 ).
the medical proof adduced, even the physician who performed
the independent medical examination of claimant was of the
view that, notwithstanding claimant's three prior back
surgeries, the injuries to claimant's neck and low back
were causally-related to the November 2015 incident. This
opinion, in turn, was entirely consistent with the history
provided to and the diagnoses made by claimant's treating
physician. Under these circumstances, the Board's finding
that claimant sustained causally-related injuries to his neck
and low back is supported by substantial evidence in the
record as a whole and, therefore, will not be disturbed
(see Matter of Brown v Penguin A.C., 113 A.D.3d
1009, 1009 ; Matter of Mallette v
Flattery's, 111 A.D.3d 989, 990 ). The
carrier's remaining arguments have been examined and
found to be lacking in merit.
P.J., Clark, Aarons and ...