Calendar Date: December 17, 2019
Goldberg Segalla, LLP, Buffalo (Cory A. DeCresenza of
counsel), for appellants.
Panepinto, PC, Batavia (Kristin M. Allen of counsel), for
Donald Docking, respondent.
Letitia James, Attorney General, New York City (Marjorie S.
Leff of counsel), for Workers' Compensation Board,
Before: Lynch, J.P., Clark, Mulvey, Devine and Reynolds
from a decision of the Workers' Compensation Board, filed
October 9, 2018, which ruled that claimant sustained an
accidental injury arising out of and in the course of his
employment and awarded workers' compensation benefits.
2017, claimant, a hazmat driver, sustained an unwitnessed
fall while at work that caused a traumatic brain injury. At
the time of the incident, claimant was outside of the
stockroom loading a cart with boxes, shortly after which he
was found by his coworkers on the floor, bleeding from a
laceration on his head. According to claimant, he woke up in
the hospital, where he remained for approximately two months,
and does not have any memory of falling to the ground at work
and injuring his head. He subsequently filed a claim for
workers' compensation benefits, and his claim was
controverted by the employer and its workers'
compensation carrier (hereinafter collectively referred to as
the employer). Following a hearing, a Workers'
Compensation Law Judge (hereinafter WCLJ) found that the
Workers' Compensation Law § 21 presumption applied,
that the employer failed to rebut that presumption and,
therefore, that claimant sustained a work-related injury and
was entitled to benefits. On administrative appeal, the
Workers' Compensation Board affirmed, finding that the
employer failed to produce substantial evidence to rebut the
Workers' Compensation Law § 21 presumption and,
therefore, claimant's injury arose out of and in the
course of his employment. This appeal by the employer ensued.
affirm. "Whether a compensable accident has occurred is
a question of fact to be resolved by the Board and its
determination will not be disturbed when supported by
substantial evidence" (Matter of Rangasammy v.
Philips Healthcare, 172 A.D.3d 1858, 1859 
[internal quotation marks and citations omitted], lv
denied ___ N.Y.3d ___ [Nov. 25, 2019]; see Matter of
Ferrari v. Darcon Constr. Inc., 170 A.D.3d 1392, 1393
; Matter of Siennikov v. Professional Grade
Constr., Inc., 137 A.D.3d 1440, 1441 ). To be
compensable under the Workers' Compensation Law, an
accidental injury must arise both out of and in the course of
a claimant's employment (see Workers'
Compensation Law §§ 2 ; 10 ; Matter of
Larosa v. ABC Supply Co., Inc., 159 A.D.3d 1321, 1321
; Matter of Deleon v. Elghanayan, 159 A.D.3d
1244, 1245 ). "Workers' Compensation Law
§ 21 (1) provides a presumption of compensability for
accidents occurring during the course of employment which are
unwitnessed or unexplained" (Matter of Babson v.
Finch Pruyn & Co. Inc., 25 A.D.3d 936, 937 
[citations omitted]; see Matter of Silvestri v. New York
City Tr. Auth., 153 A.D.3d 1069, 1070 ; Matter
of Wichtendahl v. Arrow Bus Line, 307 A.D.2d 400, 401
). "To rebut this presumption, it was the
employer's burden to provide substantial evidence to the
contrary" (Matter of Babson v. Finch Pruyn & Co.
Inc., 25 A.D.3d at 937 [citations omitted]; see
Matter of Quigley v. Concern for Ind. Living, 146 A.D.3d
1185, 1185 ; Matter of Oathout v. Averill Park
Cent. Sch., 142 A.D.3d 749, 750 ).
there is no dispute that, because claimant was found injured
on the ground at work with no witnesses to the incident, the
presumption of compensability applies (see
Workers' Compensation Law § 21 ; Matter of
Browne v. New York City Tr. Auth., 66 A.D.3d 1290, 1290
). The employer argues, however, that the statutory
presumption was rebutted by its proof that claimant's
injury resulted not from an accident associated with his job
duties but, rather, from his preexisting cardiovascular
condition. In support of its position, the employer presented
the medical reports of Louis Medved, a neurologist who
performed an independent medical examination of claimant in
December 2017 and reviewed claimant's medical records.
Medved reported that claimant has a "past medical
history significant for atrial fibrillation for which he
underwent cardioversion." Although Medved attributed
claimant's loss of consciousness and resulting brain
injury to his underlying cardiac condition, Medved
acknowledged that when claimant was evaluated at the hospital
following the incident, he was in normal "sinus
with Medved's observation regarding claimant's normal
sinus rhythm, Sara Connolly, a physician specializing in
emergency medicine who presided over the emergency room when
claimant was brought to the hospital and who diagnosed
claimant with an intracranial hemorrhage, indicated that
claimant's heartbeat and pulse were normal with regular
rhythm and no murmurs. Connolly also noted that
claimant's hematology and EKG test results were normal
with no signs of heart damage and that, at the time he was
evaluated in the emergency room, claimant was in sinus rhythm
and not in atrial fibrillation. Although claimant's
diastolic blood pressure at that time was mildly elevated,
Connolly noted that such condition would be consistent with
an intracranial injury. Connolly further opined that
claimant's injuries were consistent with the type of fall
that claimant experienced. The Board ultimately found
Connolly more credible than Medved and concluded that
Medved's testimony was unduly speculative and therefore
insufficient to rebut the presumption under Workers'
Compensation Law § 21. Given the record before us, and
"[a]ccording appropriate deference to the Board's
credibility determinations and resolution of conflicting
evidence" (Matter of Pappas v. State Univ. of N.Y.
at Binghamton, 53 A.D.3d 941, 943 ; see Matter
of Rangasammy v. Philips Healthcare, 172 A.D.3d at
1860), we find no reason to disturb the Board's
determination that the employer failed to produce substantial
evidence demonstrating that the accident was not work related
(see Matter of Oathout v. Averill Park Cent. Sch.,
142 A.D.3d at 750; Matter of Babson v. Finch Pruyn &
Co. Inc., 25 A.D.3d at 937-938; Matter of Cargain v.
Poritzky's Meat Co., 58 A.D.2d 907, 907-908 ;
Matter of Schmitt v. Bay Ridge Hosp., 277 AD 957,
957-958 ; compare Matter of Wichtendahl v. Arrow
Bus Line, 307 A.D.2d at 401).
J.P., Clark, Devine and Reynolds ...