| Matter of Pena v Alize II Corp. |
| 2010 NY Slip Op 07640 [77 AD3d 1225] |
| October 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Rineyda Burgos Pena,Respondent, v Alize II Corporation, Doing Business as Caridad &Louie's, et al.,Appellants. Workers' Compensation Board, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed March 3, 2009,which ruled that claimant sustained a compensable injury and awarded workers' compensationbenefits.
Claimant, a waitress, applied for workers' compensation benefits in June 2008, alleging thatshe injured her leg, hip and back in a fall that occurred during the course of her employment onApril 29, 2008. In controverting the claim, the employer and its workers' compensation carrier(hereinafter collectively referred to as the employer) contended that claimant did not providetimely notice of the incident leading to her injuries and that, in any event, claimant's inability towork stemmed from a preexisting back condition. Following hearings, a Workers' CompensationLaw Judge established the claim and awarded claimant benefits. The Workers' CompensationBoard upheld that determination, prompting this appeal.[*2]
We affirm. With regard to notice, claimant testified that acoworker witnessed her fall and that, on May 7, 2008, her husband informed the employer thatshe could not return to work because of pain in her back and legs. An owner of the employeracknowledged being apprised of a telephone call from claimant's husband indicating thatclaimant "had been injured and it was because of her having fallen." Further, in its application forBoard review, the employer acknowledged that claimant's husband had indicated that claimanthad fallen at work. Accordingly, as the sufficiency of a claimant's oral notice is a matter withinthe exclusive province of the Board, we conclude that substantial evidence supports the Board'sfactual determination that claimant adequately notified her employer of her injuries (seeWorkers' Compensation Law § 18; Matter of Pisarek v Utica Cutlery, 26 AD3d 619, 620 [2006]; Matter of Walker v Greene Cent. SchoolDist., 6 AD3d 965, 966 [2004]).
Turning next to causation, " '[t]he [B]oard's expertise in delimiting what events are accidentsand what events merely constitute exacerbation of prior injuries must be respected if there isample evidentiary support for the finding' " (Matter of Lomuscio v Metropolitan SuburbanBus Auth., 290 AD2d 828, 829 [2002], quoting Matter of Di Simone v UnderwritersAdjusting Co., 91 AD2d 782 [1982]). Here, despite evidence in the record regarding a priorinjury to claimant's back, both claimant's physician and an independent medical examiner opinedthat the injuries underlying the instant claim were caused by claimant's fall in April 2008. TheBoard was authorized to credit their opinions and, thus, its decision is supported by substantialevidence (see Matter of Maricle vCrouse Hinds, 67 AD3d 1284, 1284-1285 [2009]).
The employer's remaining arguments, to the extent not specifically addressed herein, havebeen reviewed and found to be without merit.
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the decision isaffirmed, without costs.