| Matter of Poulton v Martec Indus. |
| 2010 NY Slip Op 06035 [75 AD3d 819] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of David Poulton, Respondent, v MartecIndustries et al., Appellants, and Griffin Manufacturing Company, Respondent. Workers'Compensation Board, Respondent. |
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Mercure, J. Appeal from a decision of the Workers' Compensation Board, filed April 29,2009, [*2]which, among other things, ruled that claimantaggravated a prior injury and awarded workers' compensation benefits.
Claimant, a laborer employed by Martec Industries, applied for workers' compensationbenefits alleging that he injured his back lifting materials at work on June 7, 2006. Inasmuch asclaimant had sustained back injuries in 1998 and 2000 while working for a prioremployer,[FN1]Martec and its workers' compensation carrier controverted the claim. Following hearings, aworkers' compensation law judge awarded claimant benefits, concluding that the June 7, 2006incident constituted "an accidental work related aggravation of prior neck and back injuries."Upon review, the Workers' Compensation Board affirmed.
Martec and the carrier now appeal, asserting, among other things, that the June 7, 2006incident did not cause a new disability. Under the circumstances, "the proper inquiry is whetherclaimant's employment acted upon [a] preexisting condition in such a way as to cause a disabilitywhich did not previously exist" (Matter of Sidaris v Brookhaven Mem. Hosp., 271 AD2d884, 885 [2000] [internal quotation marks and citation omitted]). We conclude that it did notand, thus, reverse.
Claimant testified that he had experienced the same type of back pain "every day" since1998. On June 2, 2006, claimant scheduled a June 8, 2006 appointment with his treatingphysician—who had been seeing claimant for his back problems on a monthlybasis—to discuss his desire to cease working.[FN2]At that appointment, claimant made no mention of an incident at work the prior day and,following the examination, claimant's physician concluded that claimant was disabled and unableto work "[b]ecause of his old injuries and his continued decline."
When claimant's treating physician later learned of the June 7, 2006 incident, hecharacterized it as an example of episodic increases in pain that claimant had suffered since[*3]1998. Claimant similarly acknowledged that he "had this typeof pain even before [he] started working at Martec" and, in fact, had felt the same type of intensepain in the "same area of the body, same area of the back" as recently as one month before theJune 7, 2006 incident. Indeed, claimant acknowledged that his treating physician had beenurging him to go out on disability for quite some time. Furthermore, claimant's supervisortestified that claimant regularly complained of back pain and that, before June 2006, claimantstated that he might stop working and seek permanent disability benefits as a result of a backinjury sustained at his former job. Finally, a second physician who examined claimant opinedthat he suffered from degenerative disc disease and that his disability was caused primarily bypreexisting problems.
Considering the foregoing and viewing the record as a whole, we conclude that the Board'sfinding that claimant sustained a new injury on June 7, 2006 is not supported by substantialevidence. Accordingly, the Board's decision must be reversed and the matter remitted to theBoard for further proceedings (cf.Matter of Baer v Eden Park Nursing Home, 51 AD3d 1344, 1344-1345 [2008]; seegenerally Matter of Lomuscio v Metropolitan Suburban Bus Auth., 290 AD2d 828, 829-830[2002]).
The parties' remaining arguments are rendered academic.
Cardona, P.J., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: Claimant did not apply forworkers' compensation benefits in 1998; the 2000 incident, however, resulted in an establishedworkers' compensation claim.
Footnote 2: While scheduling theappointment, claimant informed personnel in his physician's office that he had increasing backpain and that it had become hard for him to function at work. On June 6, 2006, claimantcontacted his physician's office again and reiterated his desire to discuss going out on disability.We note, in addition, that claimant made no reference to the June 7, 2006 work-related incidenton an application for disability benefits that he completed on June 9, 2006.