Third Department Cases Dealing With Workers Compensation 3-12-15

Today the Court decided 2 cases dealing with workers’ compensation.

In Matter of Aponte, the claimant appealed a finding that he had voluntarily removed himself from the labor market. Claimant was injured in March 2009 when a coworker assaulted him, and his case was established for an injury to the neck, back and knee. Claimant stopped working and, in 2010, the Workers’ Compensation Board determined that he had voluntarily removed himself from the labor market. In February 2011 claimant first found work with a pharmaceutical company and then as a security guard until his contract expired in August 2011. Claimant did not work thereafter and had surgery on his neck and back in December 2011 and May 2012, respectively. Following the 2011 surgery, claimant was found to have a marked partial disability but, after the 2012 surgery, his pain was significantly improved and he was found to have a moderate partial disability. The Board ultimately concluded that claimant failed to show attachment to the labor market and, thus, that he was not entitled to an award for lost time after August 2011. Claimant appealed and the Court affirmed.

“[B]efore awarding wage replacement benefits in a non-schedule permanent partial disability case,” the Board is required to determine “whether a claimant has maintained a sufficient attachment to the labor market” (Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186, 191 [2012] [internal quotation marks and citations omitted]). That is, the Board must determine whether a claimant’s “reduced earning capacity is due to the disability, not . . . factors unrelated to the disability” (id.) [internal quotation marks and citation omitted]). Here, claimant testified that he stopped working in August 2011 because his contract as a security guard ended, a factor unrelated to his disability. Claimant stated that he made no subsequent attempt to search for employment within medical restrictions because he was awaiting surgery, but admitted that his doctors did not suggest surgery to him until approximately three months after he ceased working, and that they had not told him that he could not work. Although he had submitted applications to “[w]ork agencies” prior to the time that he ceased working, claimant admitted that he did not prepare a resume or contact the Department of Labor to obtain rehabilitation services after August 2011.

Under these circumstances, we are constrained to find that substantial evidence supports the Board’s determinations that claimant’s separation from the labor market was voluntary and that he failed to demonstrate that his reduction in earnings was causally related to his disability (see Matter of Launer v Euro Brokers, 115 AD3d 1130, 1131-1132 [2014], lv denied 23 NY3d 906 [2014]; Matter of Bobbitt v Peter Charbonneau Constr., 85 AD3d 1351, 1351-1352 [2011]; see also Matter of Winters v Advance Auto Parts, 119 AD3d 1041, 1042-1043 [2014]).

In Matter of Lorsado, the claimant appealed from a decision of the Workers’ Compensation Board, filed July 31, 2013, which ruled that claimant did not sustain a compensable injury and denied his claim for workers’ compensation benefits. Claimant, a truck driver, applied for workers’ compensation benefits in March 2009, alleging that he injured his back in October 2007 while unloading a delivery truck. Following a hearing, at which claimant and his treating physicians appeared and testified, a Workers’ Compensation Law Judge (hereinafter WCLJ) found that claimant had sustained a work-related injury and established the claim. The employer and its workers’ compensation carrier sought review by the Workers’ Compensation Board contending, among other things, that there was no credible evidence to support the WCLJ’s decision. The Board agreed and reversed the WCLJ’s decision finding, among other things, that the medical evidence did not establish that claimant had suffered a compensable injury. This appeal by claimant ensued.

We affirm. “Whether a compensable accident has occurred presents a question of fact for resolution by the Board and its decision will be upheld when supported by substantial evidence” (Matter of Rolleri v Mastic Beach Ambulance Co., Inc., 106 AD3d 1292, 1292 [2013], lv denied 21 NY3d 865 [2013] [citations omitted]; accord Matter of Wait v Hudson Val. Community Coll., 120 AD3d 1456, 1456 [2014]). Here, claimant testified that he injured his back at work on October 1, 2007, that he notified his employer the following day and that he immediately sought medical treatment. (1) As the Board aptly observed, however, the medical evidence adduced at the hearing does not support claimant’s assertion that he suffered a work-related accident. Although many of the salient medical records are largely illegible, claimant’s treating physician testified that claimant presented in his office on Wednesday, October 3, 2007 complaining of pain in his left arm, numbness in his mouth, back pain, fatigue and cold feet. Although the physician noted that claimant lifted heavy objects as part of his job, no mention is made of when or how claimant injured his back, and the physician acknowledged that claimant previously had been treated for back pain by another provider. When claimant returned for a follow-up visit one week later, the physician noted that claimant’s “back went out” the preceding Monday that claimant reported “lift[ing] some furniture at home.” Again, no mention was made of a work-related injury. Claimant then was referred to an orthopedist, who evaluated him on October 15, 2007. According to the orthopedist’s records, claimant’s back pain began at home on October 10, 2007, this “recurrent” pain came on “[g]radually” and claimant “denie[d] trauma.” Given the Board’s broad authority to resolve credibility issues and draw reasonable inferences from the conflicting evidence presented, we find that the Board’s decision is supported by substantial evidence and, as such, will not be disturbed (see Matter of Dixon v Almar Plumbing, 111 AD3d 1230, 1231 [2013]; Matter of Rolleri v Mastic Beach Ambulance Co., Inc., 106 AD3d at 1293).

1. According to claimant, the employer discouraged him from seeking workers’ compensation benefits; claimant subsequently applied for and received both short- and long-term disability benefits.

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