| Matter of Parrinello v New York City Tr. Auth. |
| 2008 NY Slip Op 00014 [47 AD3d 980] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Paul Parrinello, Appellant, v NewYork City Transit Authority, Respondent. Workers' Compensation Board,Respondent. |
—[*1] Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for NewYork City Transit Authority, respondent.
Spain, J. Appeals (1) from a decision of the Workers' Compensation Board, filed February27, 2006, which ruled that claimant did not sustain an accidental injury arising out of and in thecourse of his employment and denied his claim for workers' compensation benefits, and (2) froma decision of said Board, filed August 14, 2006, which denied claimant's request forreconsideration or full Board review.
Claimant was employed as a level II supervisor when, in April 2001, during a meeting withhis immediate supervisor, he began complaining of chest pains and lightheadedness. After beingtransported to a hospital, claimant was diagnosed as suffering from stress. Claimant then beganreceiving psychiatric treatment and retired from his position. In May 2001, claimant filed forworkers' compensation benefits, alleging causally related heart problems, anxiety and depressiondisorder. After two hearings, the case was closed in June 2003 for lack of prima facie medicalevidence. The case was reopened in December 2003, after claimant submitted a narrative fromhis treating psychologist, who determined that the overall stress of claimant's [*2]employment may have been a contributing factor to hispsychological condition. After a hearing, at which claimant and his immediate supervisortestified, and the submission of the deposition testimony of claimant's psychologist, treatingphysician and the employer's independent medical examiner, a Workers' Compensation LawJudge found that claimant had established a work-related accident and awarded workers'compensation benefits. The Workers' Compensation Board reversed, however, finding that thestress that claimant experienced at work was not greater than the stress experienced by otherlevel II supervisors. Claimant's request for full Board review or reconsideration was denied.Claimant now appeals.
We affirm. A claim for work-related stress is not compensable without "showing that thestress experienced by the affected claimant was greater than that which other similarly situatedworkers experienced in the normal work environment" (Matter of Spencer v Time WarnerCable, 278 AD2d 622, 623 [2000], lv denied 96 NY2d 706 [2001]; accord Matter of Pinto v SouthportCorrectional Facility, 19 AD3d 948, 950-951 [2005]). In resolving this factual issue, theBoard's determination will not be disturbed if supported by substantial evidence (see Matterof Bottieri v Travelers Ins., 309 AD2d 1100, 1102 [2003]). Here, claimant testified that heexperienced considerable stress as a supervisor in charge of completing construction projects onsubway stations on time and under budget, and worked long hours due to his addedresponsibilities of showing safety videos and coordinating charity collections. However, whenjuxtaposed against the testimony of claimant's immediate supervisor, it becomes evident thatthese sources of stress did not operate on claimant alone but, rather, all the level II supervisorswere under similar pressure regarding their assigned projects. In addition, claimant's supervisortestified that the responsibility of showing the safety videos was rotated among all the level IIsupervisors, and claimant conceded that he collected for the employer's charity drive at the sametime that he showed the safety videos. Mindful of the Board's discretion to weigh conflictingevidence and evaluate witness credibility (see Matter of Gropper v GPA Mech., 35 AD3d 947, 948 [2006]),we find that substantial evidence in the record supports the Board's determination that claimantdid not demonstrate that he experienced greater stress than his peers and, therefore, it will not bedisturbed (see Matter of Pinto v Southport Correctional Facility, 19 AD3d at 951;Matter of Bottieri v Travelers Ins., 309 AD2d at 1102; Matter of Spencer v TimeWarner Cable, 278 AD2d at 623).
Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the decisions areaffirmed, without costs.