| Matter of Coleman v Schenectady County Dept. of SocialServs. |
| 2011 NY Slip Op 00070 [80 AD3d 837] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Virginia M. Coleman, Respondent, vSchenectady County Department of Social Services et al., Appellants. Workers' CompensationBoard, Respondent. |
—[*1] Noelle M. Long, Clifton Park, for Virginia M. Coleman, respondent. Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed June 23, 2009,which ruled that claimant sustained a compensable injury and awarded workers' compensationbenefits.
Claimant, a child support investigator, filed for workers' compensation benefits alleging thatwork-related stress caused her anxiety, migraine headaches, hypertension and insomnia. Theemployer controverted the claim. At the prehearing conference, however, the Workers'Compensation Law Judge held that the employer waived its defenses due to its failure to file aprehearing conference statement pursuant to 12 NYCRR 300.38 (f) (4). Viewing the question ofwhether the claim was compensable under Workers' Compensation Law § 2 (7) as adefense that should have been raised in the prehearing conference statement, the Worker'sCompensation Law Judge established the claim. The Workers' Compensation Board affirmed andthe employer and [*2]its workers' compensation carrier(hereinafter collectively referred to as the employer) appeal.
Claimant had the initial burden of showing that she sustained a work-related injury, eventhough the employer waived its defenses (see e.g. Matter of Nwoko v City of New York, 29 AD3d 1070,1071 [2006]; Matter of Lumia v City ofN.Y., Off. of Queens Borough President, 21 AD3d 600, 601 [2005]). To establish aclaim for injury due to work-related stress, claimant was required to show that the stress sheexperienced was greater than that which other similarly situated workers experienced in thenormal work environment (see Matter ofParrinello v New York City Tr. Auth., 47 AD3d 980, 981 [2008]; Matter of Bottieriv Travelers Ins., 309 AD2d 1100, 1101-1102 [2003]; Matter of Ford v Unity House ofTroy, 292 AD2d 717, 718 [2002], lv denied 98 NY2d 610 [2002]). The medicalreports submitted by claimant establish that she experienced work-induced stress, but do notoffer any basis upon which to conclude that she experienced greater stress than other similarlysituated workers. Contrary to the claimant's characterization, neither the C-3 form nor the C-4form state that she was subjected to harassment. As the determination that claimant sustained acompensable injury is not supported by substantial evidence, the matter must be remitted to theBoard for further development of the record on this issue (see Matter of McLean v Amsterdam Nursing Home, 72 AD3d1309, 1311 [2010]; Matter of Moore v Ogden Allied, 284 AD2d 624, 626-627[2001]). Finally, as claimant is required to establish the compensable nature of her injuryregardless of the employer's waiver of its defenses, we need not address the employer's challengeto the applicable regulation.
Mercure, J.P., Peters, Malone Jr. and Garry, JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.