Ciullo v. Gordon L. Seaman Inc.

• Decision Date: 17 November 2016
• Citation: 144 A.D.3d 1377,2016 N.Y. Slip Op. 07741,41 N.Y.S.3d 607
• Parties: In the Matter of the Claim of James CIULLO, Appellant, v. GORDON L. SEAMAN INC. et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1377

41 N.Y.S.3d 607

2016 N.Y. Slip Op. 07741

In the Matter of the Claim of James CIULLO, Appellant,

v. GORDON L. SEAMAN INC. et al., Respondents.Workers' Compensation Board, Respondent.

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

Nov. 17, 2016.

John F. Clennan, Ronkonkoma, for appellant.

Lawrence J. Komsky, Hewlett, for Gordon L. Seaman Inc. and another, respondents.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.

DEVINE, J.

Appeal from a decision of the Workers' Compensation Board, filed July 3, 2015, which ruled that claimant's injury did not arise out of and in the course of his employment and denied his claim for workers' compensation benefits.

On August 22, 2013, claimant purportedly fell from a ladder while working and landed on his feet. He stated that he told his wife that his back was bothering him due to the fall, but he did not file an incident report with his employer. According to claimant, this exacerbated his prior back condition and he collapsed at home. He went to the emergency room and was later released, but proceeded to go to a job site the next day to deliver blueprints and other materials. The condition eventually required several surgeries and other medical treatment.

On October 15, 2013, claimant filed a claim for workers' compensation benefits.

The employer, through its workers' compensation carrier, controverted the claim on the ground that claimant's back injury did not arise out of and in the course of his employment. Following a number of hearings, a Workers' Compensation Law Judge sustained the employer's objection and disallowed the claim. The Workers' Compensation Board affirmed this decision and claimant now appeals.

Initially, it is well settled that, in order for an injury to be compensable, it must arise out of and in the course of employment (see Workers' Compensation Law § 10[1] ; Matter of Maher v. NYS Div. of Budget, 72 A.D.3d 1380, 1381, 898 N.Y.S.2d 726 [2010] ). This is a factual issue for the Board to decide, and its determination in this regard will be upheld if supported by substantial evidence (see Matter of Nichols v. Hale Cr. ASACTC, 91 A.D.3d 1010, 1011, 935 N.Y.S.2d 915 [2012] ; Matter of Siliverdis v. Sea Breeze Servs. Corp., 82 A.D.3d 1459, 1460, 919 N.Y.S.2d 231 [2011] ).

Here, the history recorded in the medical notes taken during claimant's initial visit to the emergency room indicated that his injury was the result of a fall at home. Notably, Brian Morelli, the orthopedic surgeon who performed claimant's emergency laminectomy and treated him thereafter, did not link claimant's back condition to a fall at work until March 2014, and acknowledged that he had earlier represented on a disability benefits form that the condition was not work related. Claimant and his wife testified at the hearing that they informed the employer's project manager soon after claimant was injured that he fell from a ladder at work, but the project manager denied that he was informed of the manner in which claimant injured his back. The manager further stated that, while claimant was in the hospital, he left a voice message inquiring about obtaining workers' compensation benefits and asked the manager “if there was any way that [he] could ma[ke] that happen.” The manager responded by telling claimant's wife to file an incident report, which did not occur. No testimony was presented at the hearing from witnesses who actually observed claimant fall from the ladder and could substantiate his version of events.¹

In view of the foregoing, it is clear that...