Nunez v. Young Men's Christian Ass'n of Greater N.Y.

• Citation: 210 A.D.3d 1269,178 N.Y.S.3d 607
• Decision Date: 17 November 2022
• Docket Number: 535140
• Parties: In the Matter of the Claim of Fernando NUNEZ, Appellant, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER NEW YORK et al., Respondents. Workers’ Compensation Board, Respondent.
• Court: New York Supreme Court Appellate Division

210 A.D.3d 1269

178 N.Y.S.3d 607

In the Matter of the Claim of Fernando NUNEZ, Appellant,

v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER NEW YORK et al., Respondents.Workers’ Compensation Board, Respondent.

535140

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

Calendar Date: October 12, 2022

Decided and Entered: November 17, 2022

John F. Clennan, Ronkonkoma, for appellant.

Vecchione, Vecchione, Connors & Cano, LLP, Garden City (Brian M. Anson of counsel), for Young Men's Christian Association of Greater New York and another, respondents.

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

MEMORANDUM AND ORDER

Aarons, J. Appeals (1) from a decision of the Workers’ Compensation Board, filed September 13, 2021, which ruled that claimant did not sustain a further causally-related disability after March 24, 2019 and denied authorization for surgery to his lumbar spine, and (2) from a decision of said Board, filed December 15, 2021, which denied claimant's application for reconsideration and/or full Board review.

In July 2018, claimant, a maintenance worker, sustained work-related injuries to his hand, head and back. Claimant returned to work in September 2018. On Sunday, March 24, 2019, claimant bent down to pick something up on the floor at home at which time he became "paralyzed" and "couldn't move."

Claimant did not return to work the following day or thereafter and sought medical treatment, which revealed, among other things, that he had a herniated disc

at L4–L5 with facet hypertrophy and a bulging disc at L5–S1 with facet hypertrophy. By letter dated July 30, 2019, claimant informed his employer that he was resigning from his position due to a recent diagnosis and illness requiring extended treatment and recovery and that he was unable to perform his duties.

In October 2019, claimant's claim for workers’ compensation benefits was established by a Workers’ Compensation Law Judge (hereinafter WCLJ) for an injury to his lower back, and the WCLJ directed claimant to produce medical evidence for all periods of causally-related lost time. The employer and its workers’ compensation carrier subsequently filed several notice of treatment bill disputes (C–8.1) on the ground that claimant's treatment was not causally related to the July 2018 work injury. Claimant requested a hearing to address his indemnity benefit request for lost time subsequent to March 22, 2019. Following hearings and obtaining deposition testimony, the WCLJ, in an April 2021 reserved decision, found, among other things, that the March 24, 2019 incident at home exacerbated claimant's July 2018 work-related injury and awarded indemnity benefits at the temporary total disability rate for lost time from March 25, 2019 to April 26, 2021 and continuing. Upon administrative review, the Workers’ Compensation Board, in a September 2021 decision, modified the decision of the WCLJ, finding that claimant had submitted insufficient and incredible evidence that he had sustained a further causally-related disability subsequent to March 24, 2019. Claimant's subsequent application for reconsideration and/or full Board review was denied in a December 2021 decision. Claimant appeals from both decisions.

We affirm. "Initially, we note that there is no presumption of continuing disability under the Workers’ Compensation Law" ( Matter of Marable–Greene v. All Tr., 190 A.D.3d 1078, 1078, 139 N.Y.S.3d 685 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Cary v. Salem Cent. School Dist., 91 A.D.3d 1000, 1001, 936 N.Y.S.2d 720 [3d Dept. 2012] ). "The claimant bears the burden of demonstrating, through competent medical evidence, that the continued disability is causally related to the work-related injury" ( Matter of Marable–Greene v. All Tr., 190 A.D.3d at 1078, 139 N.Y.S.3d 685 [citations omitted]). "The Board has broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inference from the evidence in the record" ( Matter of Castro v. Tishman Speyer Props., 303 A.D.2d 790, 791, 755 N.Y.S.2d 327 [3d Dept. 2003] [internal quotation marks and citations omitted]; see Matter of Cala v. PAL Envtl. Safety Corp., 203 A.D.3d 1367, 1368, 165 N.Y.S.3d 154 [3d Dept. 2022] ).

Claimant testified that, because of his March 2019 injury, he did not return to work and has not worked in any other job since. Claimant's manager testified that claimant called her in March 2019 about using sick days because he had an accident at home. However, after using sick days, claimant never returned to work. A surgeon who conducted an independent medical examination of claimant in May 2020 testified that, although he diagnosed claimant with a lumbar sprain

, claimant did not report to him any prior work accidents or any subsequent injuries, including the March 2019 incident at home, during the examination and that he was unaware of claimant's employment history. That surgeon acknowledged that his medical findings, including his conclusion that claimant's condition was causally related to the July 2018 work-related injury, was based upon an incomplete history, which did not include a reporting of injuries or accidents subsequent to the July 2018 accident. Similarly, a physician who first examined cl...