| Matter of Brown v New York City Dept. of Correction |
| 2010 NY Slip Op 05302 [74 AD3d 1592] |
| June 17, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Marlon S. Brown,Appellant, v New York City Department of Correction, Respondent. Workers'Compensation Board, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (John Sweeney of counsel), forNew York City Department of Correction, respondent.
Lahtinen, J. Appeal from a decision of the Workers' Compensation Board, filed October 24,2008, which ruled that claimant did not sustain a causally related injury and denied his claim forworkers' compensation benefits.
After claimant became light-headed at work in 1999 it was determined that hislight-headedness was caused by cardiomyopathy. He was thereafter absent from work for severalmonths and applied for workers' compensation benefits, arguing that work-related stress led tohypertension which, in turn, triggered the cardiomyopathy. The Workers' Compensation Boarddisallowed his claim, finding that he had not established a causal link between job stress and hiscardiac condition. He appeals and we affirm.
Claimant suggests that the manifestation of his condition at work gave rise to a presumptionthat it arose out of and in the course of his employment (see Workers' CompensationLaw § 21 [1]; Matter of Musicus v Broadway Pastry Shop, 81 AD2d 723 [1981]).He failed to raise this issue before the Board, however, and it is accordingly unpreserved for our[*2]review (see Matter of Bond v Suffolk Transp. Serv., 68 AD3d 1341, 1342[2009]; Matter of Neville v MagazineDistribs., Inc., 61 AD3d 1165, 1166 [2009], lv denied 12 NY3d 712 [2009]). Inany event, the presumption applies where an accident is unwitnessed or unexplained and, giventhat claimant described his accident and provided medical evidence that it was caused bywork-related cardiomyopathy, neither is the case here (see Matter of Moltzon v Computer Assoc., 39 AD3d 1053, 1053[2007]; Matter of Crapo v City ofBuffalo, 24 AD3d 838, 839 [2005]; cf. Matter of Thompson v Genesee County Sheriff's Dept., 43 AD3d1252, 1253 [2007]). In contrast to claimant's medical evidence, an impartial cardiologistwho examined claimant at the Board's request found no causal link between claimant's work andhis cardiac distress. That doctor further stated that no specific cause for hypertension could befound in most cases, that stress did not uniformly cause hypertension and that he was skepticalthat claimant's hypertension and cardiomyopathy were connected given that the latter could onlybe caused by prolonged, severe and untreated hypertension. As the Board was free to credit thatopinion over medical evidence to the contrary, substantial evidence supports its determination(see Matter of Tienken v Dancing Waters, 86 AD2d 911 [1982]).
Spain, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.