| Matter of Norton v North Syracuse Cent. School Dist. |
| 2009 NY Slip Op 01378 [59 AD3d 890] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Diane Norton, Respondent, v NorthSyracuse Central School District, Appellant. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Iris Steel of counsel), for Workers'Compensation Board, respondent.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed February 1,2007, which ruled that claimant sustained a compensable injury and awarded workers'compensation benefits.
Claimant alleged that on December 12, 2005, during the course of her employment as aschool bus attendant, she sustained an injury to her left foot when she fell trying to assist awheelchair-bound student. When the pain in her foot worsened, claimant saw her physician inJanuary 2006 and then was referred to an orthopedist. In February 2006, claimant was examinedby Brett Greenky, a board-certified orthopedic surgeon, who ultimately diagnosed claimant witha fractured bone in her heel. After filing for workers' compensation benefits, a hearing was heldand, at its conclusion, a Workers' Compensation Law Judge found sufficient evidence of a causalrelationship between the nature of claimant's employment and her disability, established the caseand made an award of benefits. Upon review, the Workers' Compensation Board affirmed thisdecision. Claimant's self-insured employer now appeals.[*2]
"It is axiomatic that a claimant bears the burden ofestablishing a causal relationship between his or her employment and a disability by the profferof competent medical evidence" (Matterof Williams v Colgate Univ., 54 AD3d 1121, 1122 [2008] [citations omitted]; see Matter of Mayette v Village ofMassena Fire Dept., 49 AD3d 920, 922 [2008]). To meet this burden, "a medicalopinion on the issue of causation must signify 'a probability as to the underlying cause' of theclaimant's injury which is supported by a rational basis" (Matter of Mayette v Village ofMassena Fire Dept., 49 AD3d at 922, quoting Matter of Paradise v Goulds Pump, 13 AD3d 764, 765 [2004]).While the Board may rely upon a medical opinion as to causation even if it is not absolute ormade with medical certainty (see Matterof Norberg v Pepsi Cola Buffalo Bottling Corp., 10 AD3d 740, 741 [2004]; Matterof Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 [1993]), the Board may not"fashion a medical opinion of its own" (Matter of Sullivan v Sysco Corp., 199 AD2d849, 851 [1993]), nor may it "rely upon a medical opinion that is purely speculative rather thandemonstrating a reasonable probability as to the cause of an injury" (Matter of Shkreli v Initial ContractServs., 55 AD3d 1067, 1068 [2008]).
Even giving deference to the Board's credibility determinations and crediting claimant'stestimony as to the December 2005 accident and resulting injury to her foot, the medicalevidence did not demonstrate a reasonable probability that her fracture was linked to thisaccident. While Greenky testified how a fracture such as the one claimant sustained can occurand stated that claimant's report of the December 2005 injury was "[p]otentially consistent" withthe fracture that she sustained, he also plainly stated, "I don't have an opinion about when ithappened and how it happened." Greenky also testified that it is possible for a person such asclaimant, who suffers from osteopenia,[FN*]to sustain such a fracture "without a specific event over a period of time." Moreover, Greenky'smedical records do not consistently attribute her injury to a work-related accident. In fact,Greenky's report from his initial examination indicates that claimant's pain "came oninsidiously," i.e., without a specific injury. As a result, Greenky's testimony falls short of therequired degree of medical proof (see Matter of Mayette v Village of Massena FireDept., 49 AD3d at 920; Matter ofDechick v Auburn Correctional Facility, 38 AD3d 1094, 1095 [2007]; Matter of Zehr v Jefferson RehabilitationCtr., 17 AD3d 811, 813 [2005]), and the Board's resulting determination lacked arational basis and was not supported by substantial evidence (see Matter of Zehr v JeffersonRehabilitation Ctr., 17 AD3d at 813).
Cardona, P.J., Peters and Stein, JJ., concur. Ordered that the decision is reversed, withoutcosts, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.
Footnote *: Osteopenia is low bone density.