Calendar Date: February 20, 2018
de Andrade, New York City, for appellant.
Stewart, Greenblatt, Manning and Baez, Syosset (Peter M.
DeCurtis of counsel), for Del Frisco's Restaurant GRP and
Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
October 11, 2016, which ruled, among other things, that
claimant did not sustain a compensable injury and denied her
claim for workers' compensation benefits.
October 9, 2015, claimant, a bartender, applied for
workers' compensation benefits alleging that she
sustained injuries to her neck, back, arms, knees and legs as
the result of a fall at work that occurred on July 29, 2015.
The employer's workers' compensation carrier opposed,
alleging that the incident, as described by claimant, did not
occur and that claimant made false representations in
violation of Workers' Compensation Law § 114-a.
Following a hearing, a Workers' Compensation Law Judge
determined that a compensable accident had occurred and
awarded workers' compensation benefits. Upon review, the
Workers' Compensation Board reversed and disallowed the
claim. The Board also found that claimant had made false
representations to obtain benefits in violation of
Workers' Compensation Law § 114-a, but assessed no
penalty as claimant was not awarded any benefits. Claimant
affirm. "Whether a compensable accident has 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
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 ).
Claimant reported that she could not reach bottles stored on
the highest shelf behind the bar and was using a shelf in a
lower cabinet as a step. According to claimant, the shelf
collapsed and she fell to the floor. She reported that she
was falling backward and landed on her knees and was unable
to get up, and that she suffered injuries to her neck, back
and knees . Claimant further reported that the
incident occurred at approximately 9:00 p.m. and that a
fellow employee helped her to her feet and assisted her in
cleaning up the bottles that had fallen as a result of the
carrier submitted a video of the bar the day of the incident
that depicted claimant stepping on the cabinet shelf, causing
the shelf to collapse. In the video, claimant does not fall
down, but rather lands on her feet and continues working. The
video further shows that her fellow employee did not need to
help her up, but he did help pick up bottles after the shelf
collapsed. The employee consistently testified that he
witnessed the incident, that the shelf that collapsed was a
foot off the ground, that claimant landed on her feet and
that he helped clean up the area after the bottles fell.
Claimant argues that, because the video depicts the bar from
approximately 7:00 p.m. to 8:00 p.m., and she reported that
the incident occurred at 9:00 p.m., the video did not depict
the incident that allegedly resulted in her injuries. This
created a credibility issue for the Board to resolve, and the
Board was entitled to reject claimant's otherwise
unsupported timeline of the incident (see Matter of
Neville v Jaber, 46 A.D.3d 1137, 1138  Matter
of Valentin v THB Intermediaries Corp., 10 A.D.3d 826,
828 ). Notably, there is no evidence in this record
that there were two separate incidents that evening involving
claimant stepping on a shelf that collapsed. Further,
although claimant's medical experts concluded that she
suffers from various conditions causally-related to the
incident, including muscle weakness, cervical and lumbar
muscle strain, reduced range of cervical motion, difficulty
walking, severe neck and back pain and postconcussion
syndrome, the opinions were largely based upon claimant's
subjective complaints and her description of the incident,
including that she lost consciousness (see Matter of
Campione v FMCS, 125 A.D.3d 1072, 1073 ).
Accordingly, we conclude that substantial evidence supports
the Board's rejection of claimant's testimony and
medical proof, and its conclusion that claimant was not
injured in a work-related accident on July 29, 2015 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, 1442-1443 ).
respect to claimant's contention that the Board
improperly admitted an independent medical examination report
into evidence, the Board expressly did not rely on that
report in making its determination and claimant, therefore,
was not prejudiced by its admission (see generally Matter
of Tinelli v Ken Duncan, Ltd., 199 A.D.2d 567, 570 n
). Claimant's remaining contentions have been
considered and found to be without merit.
Jr., J.P., Mulvey, Aarons and Pritzker, JJ., concur.
that the decision is affirmed, without costs.