| Matter of Rolleri v Mastic Beach Ambulance Co., Inc. |
| 2013 NY Slip Op 03518 [106 AD3d 1292] |
| May 16, 2013 |
| Appellate Division, Third Department |
| In the Matter of Joseph P. Rolleri, Appellant, v MasticBeach Ambulance Company, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Michael Miliano, State Insurance Fund, Melville (Alisa A. Ammerman of counsel),for Mastic Beach Ambulance Company, Inc. and another, respondents.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filed July 12,2011, which ruled that claimant did not sustain a compensable accident and denied hisclaim for workers' compensation benefits.
Claimant, a volunteer emergency medical technician, filed a claim for workers'compensation benefits alleging that he slipped and fell on black ice in his driveway whileresponding to an emergency call on behalf of the employer in January 2010, whichcaused injuries to his neck and left leg. Following hearings and the submission ofextensive medical records, a Workers' Compensation Law Judge disallowed the claim,finding that claimant lacked credibility and had failed to establish a compensableaccident. The Workers' Compensation Board upheld that determination, resulting in thisappeal.
We affirm. Whether a compensable accident has occurred presents a question of factfor resolution by the Board and its decision will be upheld when supported by substantialevidence (see Matter ofCaballero v Fabco Enters., 77 AD3d 1028, 1029 [2010], lv dismissed 16[*2]NY3d 780 [2011]; Matter of Fortunato v Opus III VIICorp., 56 AD3d 905, 906 [2008]). Here, while claimant was injured in January2010, he did not submit a claim for workers' compensation benefits until May 2010,reportedly because he was not aware that his accident was compensable as a work-relatedinjury. Notably, there was a sharp contrast in the medical records as to the source ofclaimant's injuries before and after the submission of his claim. The initial records, madecontemporaneous with claimant's emergency room visit and treatment by his primary carephysician and an orthopedist, list various causes for his injuries but, significantly, makeno mention of a slip and fall accident. Only around the time of the submission of theclaim did claimant begin to advance the assertion that he had slipped and fallen whileresponding to an emergency call.
Moreover, prior to the submission of his claim, claimant reported to his medicalproviders that he had a history of neck pain stemming from a past automobile accidentand that he had noticed decreased range of motion in his neck over the previous six toeight months, i.e., predating his claimed January 2010 slip and fall. However, once theclaim was filed, claimant began to tell providers that he had no history of neck problemsprior to the January 2010 incident—despite the existence of evidence that he haddegenerative neck problems—prompting one provider to note that he "expect[ed]that [claimant] had limitation in his neck range of motion certainly prior to his workinjury." Thus, given the Board's broad authority to make credibility determinations anddraw reasonable inferences from the conflicting evidence in the record, we find that thedetermination that claimant failed to establish an injury arising out of and in the course ofhis duties as an emergency medical technician, i.e., while working, is supported bysubstantial evidence (see Matter of Caballero v Fabco Enters., 77 AD3d at 1029;Matter of Neville v Jaber,46 AD3d 1137, 1138 [2007]; Matter of Papadakis v Volmar Constr., Inc., 17 AD3d 874,875 [2005]).
Claimant's remaining claims have been considered and determined to be withoutmerit.
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed,without costs.