| Matter of Conyers v Van Rensselaer Manor |
| 2011 NY Slip Op 00120 [80 AD3d 914] |
| January 13, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Rosemary Conyers, Respondent, vVan Rensselaer Manor et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Bruce B. Rubin, Troy, for Rosemary Conyers, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filed March 23, 2009,which, among other things, ruled that claimant sustained a work-related lower back injury.
Claimant, a housekeeper, filed a claim for workers' compensation benefits in March 2006asserting that she had sustained a lower back injury at work while lifting a pail of water inFebruary 2005. After waking up in severe pain the morning after the injury, she went to theemergency room. She apparently did not return to work for the employer thereafter and, in March2005, took an extended leave of absence under the Family Medical Leave Act (hereinafterFMLA); her employment was terminated in April 2006. The employer and its workers'compensation carrier (hereinafter collectively referred to as the carrier) disputed the claim. Afterfact-finding hearings, a Workers' Compensation Law Judge (hereinafter WCLJ) concluded thatthere was sufficient credible evidence to establish accident, notice and causal relationship with[*2]regard to claimant's lower back injury, and placed the matteron the calendar for calculation of awards. Upon review, the Workers' Compensation Boardaffirmed, finding the WCLJ's findings of fact and credibility determinations—includingthose crediting claimant's testimony—to be fully supported by the record, and adoptedthem. The carrier now appeals.
Initially, the carrier contends that the weight of the credible testimony and evidence did notsupport the conclusion that claimant sustained an injury at work but, instead, established that shesuffered an injury at home, which aggravated preexisting back problems. We cannot agree,cognizant that, upon review, this Court "will not disturb [a decision of the Board] if it issupported by substantial evidence, despite the existence of [substantial] evidence that may havesupported a different result" (Matter ofGuifarro v Zalman, Reiss & Assoc., 52 AD3d 1126, 1127 [2008]), and that "[t]he Boardis vested with the discretion to weigh conflicting evidence and evaluate the credibility ofwitnesses, and its resolution of such matters must be accorded great deference" (Matter of Papadakis v Volmar Constr.,Inc., 17 AD3d 874, 875 [2005] [citation omitted]).
Claimant testified that, while at work on February 24, 2005,[FN1]she pulled something in her back when she attempted to lift a mop pail full of water. She toldcoworkers about the incident and finished her shift. Upon waking the following morning inextreme back pain, she called in sick to work, went to the emergency room for treatment and wasdiagnosed with sciatica. She thereafter received medical treatment for back and leg pain withseveral physicians, including Prabhakar Chava, her primary care physician, Ronald Musto, hertreating physician (who is also the employer's "comp doctor") and Deniston Stone, herchiropractor. She acknowledged that she had previously strained her back in 2004 when she wasdiagnosed with sciatica. Chava saw claimant shortly after the accident and then referred her toMusto because Musto handles workers' compensation cases at that practice. While Mustotestified that claimant stated that her symptoms started when she awoke and got out of bedsometime in March 2005, he confirmed that she reported at her second visit that the onset of thesymptoms occurred at work and he did not inquire further. Musto did not see improvement in hersymptoms despite treatment and, in May 2006, he concluded that, as a result of her lower backinjury, claimant had a permanent partial disability of a moderate degree, which he opined wascausally related to her work.
Stone testified that he has treated claimant since March 2006, when she reported that herback pain stemmed from an incident at work in February 2005 when she lifted a mop bucket. Heconcluded that her description of the incident and symptoms was consistent with her medicalhistory, and opined that she has a marked partial disability and there is a causal relationshipbetween her disability and the work-related incident. He noted that the delayed onset ofsymptoms reported by claimant was common, and that the delay explained why she denied any[*3]known "injury" when treated at the emergency room the dayafter the incident and did not initially attribute her back pain to the work incident. In contrast, thecarrier submitted the testimony of Dominici Belmonte, an occupational medicine specialist, whoexamined claimant and her medical records in 2008, three years after the incident. He concludedthat she had not been injured in the course of her employment, she does not have acausally-related disability and she required no further treatment.
The questions of whether claimant suffered an accidental injury in the course of heremployment and gave timely notice are factual ones for the Board to resolve and, upon review,we will not disturb its conclusions where, as here, they are supported by substantial evidence,despite the existence of substantial evidence to support contrary conclusions (see Matter of Donovan v BOCES RocklandCounty, 63 AD3d 1310, 1312 [2009]). Claimant testified and produced competentproof, credited by the Board, that her injuries and limitations are causally related to heremployment (see Matter of Jaquin vCommunity Covenant Church, 69 AD3d 998, 999 [2010]). We discern no basis in thisrecord upon which to disturb the Board's discretionary weighing of the conflicting evidence andevaluation of witness credibility (see Donovan v BOCES Rockland County, 63 AD3d at1312). The delay in the onset of claimant's symptoms was medically explained, as was herfailure, initially, to attribute those symptoms to the February 2005 work incident. The proof andarguments submitted by the carrier that her injury occurred at home and was an aggravation to apreexisting back injury were speculative and not so inherently persuasive that the Board abusedits discretion in rejecting them.
On the issue of notice, while claimant conceded that she did not give timely written notice ofher injury to the employer (see Workers' Compensation Law § 18), on this recordwe find that the Board did not abuse its discretion in excusing this failure given the proof that theemployer had actual knowledge of the injury (see Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402,1403 [2009]). The Board credited claimant's testimony that she told her housekeeping supervisor,Carolyn MacDonald, about the incident three days later, and that she did not fill out theemployer's incident report, as she had done on prior occasions after a work injury, becauseMacDonald did not give the papers to her or assist her. This is consistent with what claimant toldher medical care providers, and with her FMLA leave of absence.[FN2]MacDonald's testimony that claimant did not provide verbal notice to her of this injury was basedsolely on the conclusion that if claimant had done so, she would have immediately filed anincident report pursuant to the employer's policy; however, she admitted that she simply had norecollection of these events. Thus, it was within the Board's discretion to credit claimant'sessentially unrefuted testimony, and substantial evidence supports its conclusion that theemployer had actual notice of her injury within days, excusing the lack of timely written notice(see Matter of Coffey v Shop-RiteSupermarkets N., 39 AD3d 1006, 1007 [2007]).[*4]
Cardona, P.J., Kavanagh, McCarthy and Egan Jr., JJ.,concur. Ordered that the decision is affirmed, without costs.
Footnote 1: We find that the credibleevidence establishes that the work injury actually occurred on February 23, 2005 and thatclaimant called in sick and went for emergency treatment on February 24, 2005. The WCLJ'sreference in its decision to dates in 2008 is clearly inadvertent and the Board simply referred to adate of injury in February 2005. However, the precise date of claimant's injury is not dispositiveof any of the issues in this case.
Footnote 2: The FMLA papers were notproduced during the hearing process and are not part of the record. None of the witnesses wascertain of the basis for the FMLA leave request or the underlying medical support provided. TheWCLJ concluded that, because claimant was out of sick time and other leave time, she felt forcedto take FMLA leave for this work-related injury, which was approved with medical verification,providing notice to the employer as early as March 15, 2005.