De La Cruz v. Aufiero Painting Indus. Inc.

• Decision Date: 23 July 2020
• Docket Number: 529896
• Parties: In the Matter of the Claim of Juan DE LA CRUZ, Appellant, v. AUFIERO PAINTING INDUSTRIES INC. et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1330

128 N.Y.S.3d 328

In the Matter of the Claim of Juan DE LA CRUZ, Appellant,

v. AUFIERO PAINTING INDUSTRIES INC. et al., Respondents.Workers' Compensation Board, Respondent.

529896

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

Calendar Date: June 11, 2020

Decided and Entered: July 23, 2020

Ginarte Gallardo Gonzalez & Winograd, LLP, New York City (Timothy Norton of counsel), for appellant.

Vecchione, Vecchione, Connors, Cano LLP, Garden City Park (Brian M. Anson of counsel), for Aufiero Painting Industries Inc. and another, respondents.

Before: Egan Jr., J.P., Lynch, Devine, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeals (1) from a decision of the Workers' Compensation Board, filed August 23, 2018, which ruled that claimant did not sustain an accidental injury arising out of and in the course of his employment and denied his claim for workers' compensation benefits, and (2) from a decision of said Board, filed February 11, 2019, which denied claimant's request for full Board review.

Claimant, who was performing taping and spackling work for the employer, submitted a claim for workers' compensation benefits, asserting that he had hurt his back in an unwitnessed scaffolding accident. The employer and its workers' compensation carrier controverted the claim. Following a hearing and review of medical treatment records, the Workers' Compensation Law Judge, finding claimant's description of the nature of the accident to be inconsistent, ruled that he did not sustain an accidental injury arising out of and in the course of his employment and denied his claim for workers' compensation benefits. By decision filed August 23, 2018, the Workers' Compensation Board, with one Board member dissenting, affirmed the Workers' Compensation Law Judge's decision. Thereafter, the Board, by decision filed February 11, 2019, denied claimant's request for mandatory full Board review, finding that the application was untimely. Claimant appeals from both Board decisions.

We affirm. In order for an accidental injury to be compensable under the Workers' Compensation Law, a claimant bears the burden of demonstrating that the accidental injury arose out of and in the course of his or her employment (see Matter of Larosa v. ABC Supply Co., Inc., 159 A.D.3d 1321, 1321–1322, 74 N.Y.S.3d 376 [2018] ; Matter of Williams v. New York State Off. of Temporary Disability & Assistance, 158 A.D.3d 965, 966, 71 N.Y.S.3d 657 [2018] ; see also Workers' Compensation Law § 2[7] ). "Whether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed when supported by substantial evidence" ( Matter of Elias–Gomez v. Balsam View Dairy Farm, 162 A.D.3d 1356, 1357, 78 N.Y.S.3d 515 [2018] [internal quotation marks and citations omitted]; accord Matter of Aldea v. Damari Installations Corp., 172 A.D.3d 1852, 1853–1854, 100 N.Y.S.3d 443 [2019] ).

Claimant submitted a claim for workers' compensation benefits indicating that, on July 21, 2017, he injured his lower back when he fell backward while moving a scaffold. At his annual physical examination on July 26, 2017, the physician assistant noted that claimant complained of lower back pain for four days, but the examination revealed no swelling or redness in joints or any muscle weakness, and claimant denied any direct trauma. The following day, claimant was taken to the emergency room by ambulance. The notes in the emergency room report reflect that claimant reported a history of chronic lower back pain, as well as a "height-level fall" six days prior at work wherein he was "carrying a heavy object when he slipped and fell, landing on his buttocks." In text...