| Matter of Losardo v Baxter Healthcare Corp. |
| 2015 NY Slip Op 02036 [126 AD3d 1164] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Gerald A. Losardo,Appellant, v Baxter Healthcare Corporation et al., Respondents. Workers' CompensationBoard, Respondent. |
Law Offices of Joseph A. Romano, New York City (Anthony Brooks-Morgese ofcounsel), for appellant.
Foley, Smit, O'Boyle & Weisman, New York City (David L. Wecker ofcounsel), for Baxter Healthcare Corporation and another, respondents.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filed July31, 2013, which ruled that claimant did not sustain a compensable injury and denied hisclaim 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 hadsustained 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 themedical evidence did not establish that claimant had suffered a compensable injury. Thisappeal by claimant ensued.
We affirm. "Whether a compensable accident has occurred presents a question of factfor resolution by the Board and its decision will be upheld when supported by substantial[*2]evidence" (Matter of Rolleri v Mastic Beach Ambulance Co., Inc., 106AD3d 1292, 1292 [2013], lv denied 21 NY3d 865 [2013] [citationsomitted]; accord Matter of Waitv Hudson Val. Community Coll., 120 AD3d 1456, 1456 [2014]). Here, claimanttestified that he injured his back at work on October 1, 2007, that he notified hisemployer the following day and that he immediately sought medical treatment.[FN*] As the Board aptlyobserved, however, the medical evidence adduced at the hearing does not supportclaimant's assertion that he suffered a work-related accident.
Although many of the salient medical records are largely illegible, claimant's treatingphysician testified that claimant presented in his office on Wednesday, October 3, 2007complaining of pain in his left arm, numbness in his mouth, back pain, fatigue and coldfeet. Although the physician noted that claimant lifted heavy objects as part of his job, nomention is made of when or how claimant injured his back, and the physicianacknowledged that claimant previously had been treated for back pain by anotherprovider. When claimant returned for a follow-up visit one week later, the physiciannoted that claimant's "back went out" the preceding Monday and 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 October10, 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 reasonableinferences from the conflicting evidence presented, we find that the Board's decision issupported by substantial evidence and, as such, will not be disturbed (see Matter of Dixon v AlmarPlumbing, 111 AD3d 1230, 1231 [2013]; Matter of Rolleri v Mastic BeachAmbulance Co., Inc., 106 AD3d at 1293).
Peters, P.J., Rose and Clark, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote *:According to claimant,the employer discouraged him from seeking workers' compensation benefits; claimantsubsequently applied for and received both short- and long-term disability benefits.