| Matter of Siennikov v Professional Grade Constr.,Inc. |
| 2016 NY Slip Op 01889 [137 AD3d 1440] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of Sergii Siennikov,Appellant, v Professional Grade Construction, Inc., et al., Respondents. Workers'Compensation Board, Respondent. |
Harris Law Group, LLP, Rego Park (Mark Muccigrosso of Talkin, Muccigrosso& Roberts, LLP, New York City, of counsel), for appellant.
Vecchione, Vecchione & Connors, LLP, Garden City Park (Leslie Wong ofcounsel), for Professional Grade Construction, Inc. and another, respondents.
Egan Jr., J. Appeals (1) from a decision of the Workers' Compensation Board, filedJuly 2, 2014, which ruled that claimant did not suffer a compensable injury and deniedhis claim for workers' compensation benefits, and (2) from a decision of said Board, filedJuly 31, 2015, which denied claimant's request for reconsideration and/or full Boardreview.
Claimant, a construction helper, applied for workers' compensation benefits inNovember 2012, alleging that he had injured his left hip, back and head in a fall fromscaffolding onto a concrete floor on a construction site at approximately 11:30 a.m. onFebruary 23, 2012. At a hearing, conflicting testimony was offered by claimant, acoworker and the company owner and foreperson, medical records were submitted andthe deposition testimony of claimant's treating physicians and the workers' compensationcarrier's consulting orthopedic surgeon were introduced. A Workers' Compensation LawJudge (hereinafter WCLJ) concluded that the employer had not rebutted the presumptionunder Workers' Compensation Law § 21 and found that claimant hadsustained a work-related injury to his back and left hip and established the claim. Theemployer and its carrier sought review by the Workers' Compensation Board, contendingthat the WCLJ's findings regarding notice, accident and causal relationship, among [*2]others, were unsupported by the credible evidence. Bydecision filed July 2, 2014, the Board agreed, after undertaking a complete review of therecord, and reversed, finding, among other things, that there was insufficient credibleevidence to show that claimant suffered an injury in the course of his employment onFebruary 23, 2012. Claimant's application for reconsideration and/or full Board reviewwas denied by Board decision filed July 31, 2015. Claimant now appeals from bothdecisions.[FN1]
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" (Matter of Losardo vBaxter Healthcare Corp., 126 AD3d 1164, 1164 [2015] [internal quotationmarks and citations omitted]). Claimant testified that following this unwitnessed fall, hepromptly reported the accident to a superior and left work shortly thereafter withoutsummoning an ambulance, was absent from work the following day—aFriday—and returned to work the following Monday; he continued to work,including performing heavy lifting, until April 25, 2012, when he stopped working dueto pain. A coworker testified that he heard a crash and thereafter saw claimant on thefloor in pain, that claimant reported the fall to the supervisor, who refused to helpclaimant obtain medical treatment, and that claimant left work early. Claimant admittedlydid not seek any medical treatment until March 20, 2012 and, after X rays were taken, thephysician told him that there was "nothing wrong" and he could "continue to work."While he claimed that he had told the physician that he had fallen at work, no suchmedical records were produced. Claimant next sought medical treatment for a backachein June 2012 at an emergency room and then from his family physician, attributing hisback pain to heavy lifting within the previous month; he was diagnosed withdegenerative changes to his hip, but the records do not reflect that he reported awork-related fall.[FN2] Claimant first reported a workplace fallto a physical medicine physician in November 2012, nine months after the accident, thesame day that he filed a claim for workers' compensation benefits; while he told thatphysician that he had sought treatment at an emergency room the day of the fall, no suchrecords were ever produced, and claimant himself conceded at the hearing that he had notsought any medical treatment until almost two months after the alleged fall.
By contrast, the employer's witnesses testified that they never received notice of theaccident, that timecard and payroll records reflect that claimant worked and was paid forhis full shift on the day in question and that he lost no time and continued to work untilApril 25, 2012, when he stopped reporting and took a position with another constructioncompany. Based upon the testimony and records of the employer's witnesses, whichcontradicted claimant's proof, and the lack of documentary evidence or anycontemporaneous medical records reflecting that claimant sustained the describedwork-related injury, the Board found that the testimony of claimant and his coworker wasnot credible. The Board further determined that the medical testimony of acausally-related injury, first reported nine months after the alleged incident, was basedsolely upon the history provided by claimant, which the Board found was "unworthy of[*3]belief." Given the foregoing evidence and accordingdeference to the Board as "the sole arbiter of witness credibility" (Matter of Dixon v AlmarPlumbing, 111 AD3d 1230, 1231 [2013] [internal quotation marks and citationsomitted]), the Board was entitled to reject claimant's testimony and proof, drawreasonable inferences from the conflicting evidence and conclude that no work-relatedaccident had occurred, a finding supported by substantial evidence (see Matter ofLosardo v Baxter Healthcare Corp., 126 AD3d at 1165).
Finally, contrary to the analysis of the WCLJ, Workers' Compensation Law§ 21, "which affords a presumption that an unwitnessed or unexplainedworkplace accident arose out of the injured person's employment, . . .cannot be utilized to demonstrate that an accident occurred in the first place" (Matterof Dixon v Almar Plumbing, 111 AD3d at 1231 n 1 [internal quotation marks andcitation omitted]). Claimant's remaining arguments have been examined and determinedto lack merit.
Garry, J.P., Lynch, Devine and Clark, JJ., concur. Ordered that the decisions areaffirmed, without costs.
Footnote 1:Claimant raises noarguments in his appellate brief regarding the denial of his request for reconsiderationand/or full Board review and, accordingly, we deem his appeal from that decision to beabandoned (see Matter ofKrietsch v Northport-East Northport UFSD, 116 AD3d 1255, 1256 n 2 [2014]).
Footnote 2:Although claimant'streatment records contain a reference to a fall or jump "from a height some time ago,"there is no indication of a date or that the fall occurred at work.