| Matter of Cronk v Lyndaker Excavating & Trucking |
| 2008 NY Slip Op 09888 [57 AD3d 1204] |
| December 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Eugene Cronk, Appellant, v LyndakerExcavating & Trucking et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Wolff, Goodrich & Goldman, L.L.P., Syracuse (Robert E. Geyer Jr. of counsel), for LyndakerExcavating & Trucking and another, respondents.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed October 26, 2007,which ruled that claimant's injury was not causally related to his employment and denied his claim forworkers' compensation benefits.
Claimant seeks compensation for a back injury allegedly sustained in February 2006, when he wasunloading a brake drum from a semitrailer in the course of his employment. Claimant filed for workers'compensation benefits in April 2006, but the claim was controverted by the employer and its workers'compensation carrier (hereinafter collectively referred to as the employer). After several hearings andthe deposition of claimant's treating orthopedist, a Workers' Compensation Law Judge found, asrelevant here, that claimant's injury was causally related to his employment. The employer requestedreview by the Workers' Compensation Board and the Board reversed, finding that claimant had failedto establish causality. Claimant appeals and we affirm.[*2]
A claimant bears the burden of establishing, by competentmedical evidence, a causal relationship between an injury and his or her employment (see Matter of Mayette v Village of Massena FireDept., 49 AD3d 920, 922 [2008]; Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999, 1000 [2004]). Inrendering a determination, the Board is empowered to resolve factual issues based upon the credibilityof witnesses and inferences drawn from evidence in the record, and such determination will not bedisturbed when supported by substantial evidence (see Matter of Pappas v State Univ. of N.Y. at Binghamton, 53 AD3d941, 943 [2008]; Matter of Gross v BJ'sWholesale Club, 29 AD3d 1051, 1052 [2006]; Matter of Chinkel v Fair Harbor FireDept., 295 AD2d 829, 829 [2002]). Here, although claimant alleges that he was injured in a workaccident in February 2006, notes from his April 2006 and May 2006 visits to his orthopedist do notcontain any mention of a work-related accident. In fact, claimant's first mention of the work accidentwas to the orthopedist's physician's assistant in November 2006, which led the orthopedist to stateduring a deposition that he could not establish that claimant's injury was causally related based uponclaimant's initial reports and the fact that he later changed his story. Further, a narrative accompanyingan examination of claimant by a neurologist in January 2007 stated that he reported that his low backpain began about a year earlier and without any apparent trauma. Thus, we find the Board's decision tobe supported by substantial evidence.
Cardona, P.J., Spain, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.