Today the Court decided 5 cases dealing with workers’ compensation matters.
In Matter of Jones, The carrier appealed from a decision of the Workers’ Compensation Board, filed August 2, 2013, which, among other things, ruled that claimant sustained a causally related occupational disease and awarded workers’ compensation benefits.
Claimant worked for the employer for 42 years as a customer service representative. In connection with his duties, claimant would answer multiple telephone calls a day and cradle the telephone between his shoulder and neck while simultaneously using the computer to input customer information. In October 2010, claimant sought medical treatment for neck pain and was subsequently diagnosed with a repetitive stress injury to his neck. Thereafter, claimant filed a claim for workers’ compensation benefits, claiming that his condition was causally related to his employment. The Workers’ Compensation Law Judge granted the application and awarded workers’ compensation benefits. Ultimately, the Workers’ Compensation Board, after full Board review, ruled that claimant sustained an occupational disease and awarded workers’ compensation benefits. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) now appeal. The Court affirmed.
An occupational disease is a condition “resulting from the nature of employment” and not the environmental conditions of the workplace (Workers’ Compensation Law § 2 ; see Matter of Baker v Weyerhaeuser, 19 AD3d 850, 850 ). In order for an occupational disease to be established, “the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment” (Matter of Camby v System Frgt. Inc., 105 AD3d 1237, 1237  [internal quotation marks and citation omitted]; see Matter of Bates v Marine Midland Bank, 256 AD2d 948, 949 ). Here, the unrefuted medical evidence established that claimant’s cervical injury was causally related to the nature of his employment activities. As the record amply establishes that the repetitive nature of claimant’s employment duties caused the disability by exacerbating a dormant and nondisabling preexisting condition, the Board’s decision is supported by substantial evidence and will not be disturbed (see Matter of Tipping v Orthopedic Surgeons of Long Is., 68 AD3d 1224, 1225-1226 ; Matter of Pulos v Asplundh Tree, 29 AD3d 1073, 1074 ; Matter of Ball v New Era Cap Co., Inc., 21 AD3d 618, 619-620 ). The employer’s remaining contentions have been reviewed and found to be unpersuasive.
In Matter of Hopkins, the carrier appealed from a decision of the Workers’ Compensation Board, filed December 26, 2013, which ruled that claimant’s accidental injury arose out of and in the course of his employment.
Claimant suffered serious injuries after he fell from a scissors lift and struck his head on the floor while repairing copper piping at his job site. His claim for workers’ compensation benefits was controverted by the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier). Following a hearing, a Workers’ Compensation Law Judge determined that claimant sustained a work-related injury. The Workers’ Compensation Board affirmed that decision and the carrier now appeals.
The Court affirmed. “Whether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed then supported by substantial evidence” (Matter of Cicciarelli v Westchester Health Care Corp., 86 AD3d 733, 734  [citation omitted]; accord Matter of Worthington v Samaritan Med. Ctr., 124 AD3d 1155, 1155-1156 ). “Furthermore, absent substantial evidence to the contrary, a presumption exists that an accident that occurs in the course of employment arises out of that employment” (Matter of Worthington v Samaritan Med. Ctr., 124 AD3d at 1156 [citation omitted]; see Workers’ Compensation Law § 21 ; Matter of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149, 1151 ). Here, there is no dispute that claimant’s injury occurredduring the course of his employment. Claimant testified that he recalled getting his feet tangled in some hoses attached to an acetylene torch, losing his balance and yelling out before falling. The carrier contends, however, that claimant’s fall did not arise out of his employment, but rather resulted from a seizure induced either by substance abuse withdrawal or alcohol withdrawal. In support of its contention, the carrier presented the testimony of neurologist Emma Ciafaloni, who examined claimant the day after his fall. Ciafaloni could, however, only testify that, based upon claimant’s history, the cause of claimant’s fall was “likely” a seizure caused by substance abuse withdrawal or alcohol withdrawal, but that there were no objective tests to determine whether claimant had actually suffered a seizure before he fell. Further, although eyewitnesses testified that they believed that claimant had suffered a seizure before he fell, they admittedly had not observed claimant prior to him calling out, and they could not rule out the possibility that he had lost his balance afterbecoming entangled in the hoses. According deference to the Board’s resolution of witness credibility issues, its determination that the carrier’s evidence was speculative and insufficient to rebut the presumption of compensability pursuant to Workers’ Compensation Law § 21 will not be disturbed (see Matter of Worthington v Samaritan Med. Ctr.,124 AD3d at 1156; Matter of Booker v Intermagnetics Gen. Corp., 53 AD3d 743, 744- 745 ).
In Matter of Sunukjian, the Claimant appealed from a decision of the Workers’ Compensation Board, filed January 13, 2014, which, upon reconsideration, ruled that the employer was entitled to reimbursement for certain benefits paid to claimant.
In 2002, claimant was awarded workers’ compensation benefits for bilateral carpal tunnel syndrome and a consequential bilateral shoulder injury. Claimant was subsequently awarded a 42.82% schedule loss of use of each arm in 2004. In 2010, by stipulation of the parties, a Workers’ Compensation Law Judge rescinded the schedule loss of use award and classified claimant as having a permanent partial disability, with a weekly compensation rate of $185.04. Thereafter, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) sought to be credited for the prior schedule loss of use award payments. The Workers’ Compensation Board initially agreed with claimant that the employer had waived its right to the credit by failing to address the issue in the stipulation. The employer appealed, after which the full Board rescinded the decision of the Board panel and referred the case back to the panel for further consideration. Upon reconsideration, the Board ultimately determined that the employer was entitled to the credit. Claimant now appeals.
The Court affirmed . An employer is entitled to credit for payments of a schedule loss of use award, made prior to the claimant being classified with a permanent disability, “toward the payment of compensation for periods of actual disability” (Matter of Keselman v New York City Tr. Auth., 18 AD3d 974, 976 , appeal dismissed 5 NY3d 880 , lv denied 6 NY3d 708 ). Here, there is nothing in the stipulation or elsewhere in the record to indicate that the employer intended to waive the credit, or that the agreed-upon compensation for claimant’s permanent disability would include the rescinded schedule loss of use award (cf. Matter of Aska v United Jewish Appeal, 108 AD3d 897, 898 ). Contrary to claimant’s contention, the Board’s decision does not depart from prior Board precedent, as the Board has previously directed that an employer take credit for payments made pursuant to a prior schedule loss of use award after the parties stipulated to a permanent partial disability classification, despite the employer’s failure to request such a credit at the time of the stipulation (see Employer: McIntosh Box Pallet, 2001 WL 962832, *1-*2, 2001 NY Wrk Comp LEXIS 86649, *1- *3 [WCB No. 6901 2052, Jan. 16, 2001]).
Thus, while “[a] statutory or regulatory right may generally be waived by a stipulation or by conduct evincing an intent to forgo that right,” substantial evidence supports the determination of the Board that neither occurred here (Matter of Hernandez v Taco Bell, Inc., 52 AD3d 891, 892-893 ).
In Matter of Empara, Claimant appeals (1) from a decision of a panel of the Workers’ Compensation Board, filed August 21, 2013, which ruled that claimant was not entitled to an increase in the schedule loss of use, and (2) from a decision of the full Board, filed October 30, 2014, which adhered to the Board panel’s decision.
Claimant, an electrician, sustained a compensable work related injury in 2003 and, based upon the medical evidence presented, the parties stipulated to a 37.5% schedule loss of use of claimant’s left leg. Claimant sustained another injury in 2009 that resulted in arthroscopic surgery on his left knee and, based upon the opinion of his orthopedic surgeon that claimant had reached maximum medical improvement and suffered a permanent impairment of 40% to his left leg, claimant sought additional workers’ compensation benefits.
By decision dated November 27, 2012, a Workers’ Compensation Judge (hereinafter WCLJ) determined, without explanation or any indication as to whether the prior schedule loss of use was considered, that claimant sustained a 20% loss of use of his left leg that was causally related to the 2009 accident. The matter was continued for, among other things, consideration of an award of compensation.
By decision dated January 22, 2013, the WCLJ awarded benefits based upon the 20% loss of use of claimant’s left leg; the employer objected to the award in that it id not consider the previous 37.5% schedule loss of use in connection with the 2003 accident. Thereafter, the employer appealed the January 22, 2013 WCLJ decision, challenging the schedule loss ofuse award. Claimant opposed, claiming that the appeal was untimely given that the November 27, 2012 decision – not the January 22, 2013 decision – was final with regard to the issue of claimant’s schedule loss of use for the 2009 accident.
Ultimately, the Workers’ Compensation Board, upon full Board review, rejected claimant’s challenge to the timeliness of the appeal and reversed the WCLJ’s decision, finding that claimant was not entitled to any award for the 2009 injury inasmuch as there was no increased schedule loss of use of the left leg greater than that previously awarded in 2003. These appeals by claimant ensued.1 We are unpersuaded by claimant’s contention that the Board erred in finding the employer’s appeal to be timely. Although the WCLJ’s November 27, 2012 decision found that claimant had sustained a schedule loss of use in connection with the 2009 injury, the WCLJ did so without explanation or any indication as to whether the prior award of 37.5% schedule loss of use was to be considered in calculating a compensation award. As noted by the Board, it was unclear from the November 27, 2012 decision whether any award would be made to claimant in light of the issue of the prior schedule loss of use award. Under the particular circumstances of this case, and given the ambiguity in the WCLJ’s November 27, 2012 decision regarding the applicability of the prior schedule loss of use and whether apportionment would be applied to the ultimate award in connection with the current claim, we cannot say that the Board’s decision to grant the employer’s application for review was arbitrary and capricious or an abuse of discretion (see generally Matter of You Cai Zhang v Tony’s Marble & Granite Supply Corp., 95 AD3d 1510, 1511 ; Matter of Hiser v Richmor Aviation, Inc., 52 AD3d 915, 916 ).
Turning to the merits, “[w]hether a condition warrants a schedule loss award or an award of continuing disability benefits is a question of fact for resolution by the Board, and its determination will be upheld if supported by substantial evidence” (Matter of Kondylis v Alatis Interiors Co., Ltd., 116 AD3d 1184, 1185  [internal quotation marks and citations omitted]). As noted by the Board, a schedule award is not given for an injury, but for the residual physical and functional impairments (see State of New York Workers’ Compensation Board Medical Guidelines, at 4 [June 1996]). Here, the independent medical examiner testified that, although the guidelines provide for a 10% schedule loss of use, his examination of claimant revealed no atrophy, no instability and no loss of motion. “[W]hile the guidelines present useful criteria, the ultimate determination as to the degree of disability rests with the Board” (Matter of Carlucci v Omnibus Print. Co., Inc., 68 AD3d 1259, 1260 ). Given the foregoing medical testimony, substantial evidence supports the Board’s finding that there was no new and greater increase in the schedule loss of use of the left leg related to the 2009 accident. Claimant’s remaining contentions, to the extent not specifically discussed herein, have been reviewed and found to be without merit.
1 The Board panel’s August 21, 2013 decision was superseded by the decision of the full Board, and claimant’s appeal from the Board panel decision must be dismissed (see Matter of Winters v Advanced Auto Parts, 119 AD3d 1041, 1043 n ).
In Matter of Bunn, Appeal from a decision of the Workers’ Compensation Board, filed January 27, 2014, which ruled that claimant’s application for workers’ compensation benefits was timely filed.
Claimant, a mechanic who has worked for the self-insured employer since October 2006, was diagnosed with bilateral carpal tunnel syndrome in December 2009. In August 2012, a doctor opined that claimant’s bilateral carpal tunnel syndrome was causally related to his employment. Relying upon that opinion, claimant applied for workers’ compensation benefits in October 2012, alleging that he suffered from an occupational disease occasioned by the “repetitive use of tools.” Following a hearing, a Workers’ Compensation Law Judge found that the claim was time-barred pursuant to Workers’ Compensation Law § 28, as claimant knew or should have known in December 2009 that his occupational disease was caused by his employment. The Workers’ Compensation Board ultimately disagreed, set the date of disablement as August 7, 2012 and established the claim, prompting this appeal.
The Court affirmed . Pursuant to Workers’ Compensation Law § 28, a claim for compensation must be filed “within two years after disablement and after the claimant knew or should have known that the disease is or was due to the nature of the employment” (accord Matter of Storm v Phillips Light. Co., 117 AD3d 1312, 1313 ; Matter of Kasic v Bethlehem Steel Corp., 94 AD3d 349, 1350 ). In setting the date of disablement, the Board is afforded great latitude and its determination will not be disturbed so long as it is supported by substantial evidence (see Matter of Storm v Phillips Light. Co., 117 AD3d at 1313; Matter of Feliciano v New York City Health & Hosps. Corp., 65 AD3d 784, 785 ; Matter of Phillips v Cornell Univ., 290 AD2d 860, 862 ).
Here, the record evidence establishes that claimant has a long-standing history of suffering from bilateral shoulder and arm pain and intermittent numbness in his hands. Beginning in 2002, claimant’s primary care physician suspected that he may suffer from carpal tunnel syndrome. According to medical records, his symptoms began to intensify in December2009, and an EMG test conducted that month revealed a diagnosis of bilateral carpal tunnel syndrome. Notwithstanding this diagnosis, it was not until claimant was seen by a doctor from an occupational health practice on August 7, 2012 that the causal relationship between claimant’s diagnosis and his employment was first brought to light. Based upon this evidence and mindful of the broad latitude afforded to the Board, we find substantial evidence supports the Board’s determination that August 7, 2012 is the date of claimant’s disablement, as it was not until that time that he knew or should have know that his occupational disease was due to the nature of his employment; thus, his application was timely filed (see Workers’ Compensation Law § 42; Matter of Storm v Phillips Light. Co., 117 AD3d at 1313; Matter of Phillips v Cornell Univ., 290 AD2d at 862; Matter of Hastings v Fairport Cent. School Dist., 274 AD2d 660, 661-662 , lv dismissed 95 NY2d 926 ).