| Matter of Browne v New York City Tr. Auth. |
| 2009 NY Slip Op 07719 [66 AD3d 1290] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Rufus Browne, Appellant, v NewYork City Transit Authority, Respondent. Workers' Compensation Board,Respondent. |
—[*1] Weiss, Wexler & Wornow, New York City (Louis R. Salvo of counsel), for New York CityTransit Authority, respondent.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filed July 31, 2008,which ruled that there was no prima facie medical evidence of a causally related injury.
Claimant, a railroad track employee, was bending down to pick up a rail flag when he beganexperiencing weakness on the left side of his body. He went to the hospital the next day and wasdiagnosed with having suffered a stroke. Thereafter, claimant submitted an application forworkers' compensation benefits, asserting that his stroke arose out of and in the course of hisemployment. The self-insured employer challenged that assertion and a hearing was held.Following the hearing, at which no testimony was taken, a Workers' Compensation Law Judgedetermined that there was no prima facie medical evidence of a causal relationship betweenclaimant's stroke and his employment and designated the claim "no further action" pendingclaimant's submission of such. Upon review, the Workers' Compensation Board upheld thatdetermination, prompting this appeal.
We reverse. Inasmuch as the employer never refuted the allegation that the onset of [*2]claimant's symptoms occurred while he was at work, claimant wasentitled to the statutory presumption that his stroke arose out of and in the course of hisemployment (see Workers' Compensation Law § 21 [1]; Matter of Koenig v State Ins. Fund, 4AD3d 671, 672 [2004]; Matter of Scalzo v St. Joseph's Hosp., 297 AD2d 883, 884[2002]). Here, the record is clear that neither the Workers' Compensation Law Judge nor theBoard gave claimant the benefit of that presumption and it was "err[or to] requir[e] claimant tocome forward, in the first instance, with prima facie medical evidence of a causal relationshipbetween" his injury and his employment (Matter of Barrington v Hudson Val. FruitJuice, 297 AD2d 886, 886 [2002]; see Matter of Holmes v Kelly Farm & Garden, 1 AD3d 743,743-744 [2003]). Accordingly, this matter must be remitted to the Board to afford the employeran opportunity to rebut the presumption and, if it does so, to then allow claimant to proffer otherprima facie evidence of causality (seegenerally Matter of Boni-Phillips v Oliver, 56 AD3d 1073, 1073, 1074 [2008]; compare Matter of Schwartz v HebrewAcademy of Five Towns, 39 AD3d 1134, 1135 [2007], lv denied 9 NY3d 807[2007]).
Peters, J.P., Spain, Rose and Kane, JJ., concur. Ordered that the decision is reversed, withcosts, and matter remitted to the Workers' Compensation Board for further proceedings notinconsistent with this Court's decision.