Blanch v. Delta Air Lines

• Decision Date: 14 April 2022
• Docket Number: 533488
• Citation: 204 A.D.3d 1203,167 N.Y.S.3d 204
• Parties: In the Matter of the Claim of Portia BLANCH, Appellant, v. DELTA AIR LINES et al., Respondents. Workers’ Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1203
167 N.Y.S.3d 204

In the Matter of the Claim of Portia BLANCH, Appellant,
v.
DELTA AIR LINES et al., Respondents.

Workers’ Compensation Board, Respondent.

533488

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 24, 2022
Decided and Entered: April 14, 2022

167 N.Y.S.3d 205

Schotter, Millican, Sinaniyeva & Masilela, LLP, New York City (Geoffrey Schotter of counsel), for appellant.

Jones Jones LLC, New York City (Dana R. Sabghir of counsel), for Delta Air Lines and another, respondents.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

204 A.D.3d 1204

Appeal from a decision of the Workers’ Compensation Board, filed December 11, 2020, which, among other things, denied claimant's request to amend her claim to include consequential postconcussion syndrome with associated headaches and anxiety.

On June 20, 2018, claimant, a flight attendant for the employer, sustained injuries when she made a sudden turn to respond to a coworker and bumped her head on a corner part of an overhead bin. Claimant thereafter filed a claim for workers’ compensation benefits alleging various head and neurological-related injuries. The claim was accepted by the employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier), was later established for a work-related injury to the head, and claimant was awarded ongoing temporary total indemnity benefits. Following a May 2020 hearing at which the carrier raised the issue of claimant's labor market attachment, a Workers’ Compensation Law Judge (hereinafter WCLJ) found prima facie medical evidence for postconcussion syndrome with posttraumatic headaches and directed, among other things, claimant to produce prima facie evidence regarding the psychological portion of her claim. Following the deposition of Julian A. Bragg, claimant's treating neurologist, to address causation, and a subsequent July 13, 2020 hearing at which claimant provided testimony regarding, among other things, her attachment to the labor market, the WCLJ found, in a July 2020 notice of decision, that claimant failed to demonstrate that her alleged postconcussion syndrome with associated headaches and anxiety was causally related and disallowed her request to amend the claim to include those alleged injuries. The WCLJ also found that claimant had voluntarily removed herself from the labor market subsequent to July 6, 2018 and therefore suffered no compensable lost time as of July 7, 2018. Upon administrative appeal, the

167 N.Y.S.3d 206

Workers’ Compensation Board affirmed, finding that the record evidence did not support a causal nexus between claimant's proffered symptomology and her employment and that claimant provided incredible testimony concerning the circumstances surrounding her failure to return to work. Claimant appeals.

"The Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence" (

204 A.D.3d 1205

Matter of Park v. Corizon Health Inc., 158 A.D.3d 970, 971, 70 N.Y.S.3d 613 [2018] [internal quotation marks and citations omitted], lv denied 31 N.Y.3d 909, 2018 WL 2921794 [2018] ; see Matter of Johnson v. Adams & Assoc., 140 A.D.3d 1552, 1553, 34 N.Y.S.3d 709 [2016] ). "In addition, as the party seeking benefits, claimant bears the burden of establishing, by competent medical evidence, a causal connection or relationship between her employment and the claimed disability" ( Matter of Christensen–Mavrigiannakis v. Nomura Sec. Intl., Inc., 175 A.D.3d 1748, 1752, 109 N.Y.S.3d 490 [2019] [internal quotation marks, brackets and citations omitted]; see Matter of Richman v. New York State Workers’ Compensation Bd., 199 A.D.3d 1216, 1217, 158 N.Y.S.3d 334 [2021] ; Matter of Maldonado v. Doria, Inc., 192 A.D.3d 1247, 1248, 143 N.Y.S.3d 439 [2021] ). As to claimant's request to amend her claim to include alleged postconcussion syndrome with associated headaches and anxiety, "the Board is vested with the authority to resolve conflicting medical opinions and to ‘draw reasonable inferences from record evidence’ " ( Matter of Neira–Bernal v. SIG Contr. Corp., 183 A.D.3d 1103, 1104, 124 N.Y.S.3d 85 [2020], quoting Matter of Bagnato v. General Elec., 156 A.D.3d 1268, 1269, 68 N.Y.S.3d 212 [2017] ; see Matter of Schmerler v. Longwood Sch. Dist., 163 A.D.3d 1373, 1374, 81 N.Y.S.3d 669 [2018], lv denied 32 N.Y.3d 910, 2018 WL 6176216 [2018] ; Matter of Burgos v. Citywide Cent. Ins. Program, 148 A.D.3d 1493, 1494, 51 N.Y.S.3d 214 [2017], affd 30 N.Y.3d 990, 66 N.Y.S.3d 216, 88 N.E.3d 375 [2017] ; Matter of Schwartz v. State Ins. Fund, 120 A.D.3d 1450, 1451, 993 N.Y.S.2d 189 [2014], lv denied 24 N.Y.3d 910, 2014 WL...