Venditti v. D'Annunzio & Sons, 519440

• Decision Date: 28 May 2015
• Docket Number: 519440
• Citation: 128 A.D.3d 1303,2015 N.Y. Slip Op. 04547,8 N.Y.S.3d 739
• Parties: In the Matter of the Claim of John VENDITTI, Appellant, v. D'ANNUNZIO & SONS et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1303

8 N.Y.S.3d 739

2015 N.Y. Slip Op. 04547

In the Matter of the Claim of John VENDITTI, Appellant

v. D'ANNUNZIO & SONS et al., Respondents.Workers' Compensation Board, Respondent.

519440

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

May 28, 2015.

Law Offices of Joseph A. Romano, Yonkers (Joseph Romano of counsel), for appellant.

Weiss, Wexler & Wornow, P.C., New York City (Andrea Catalano of counsel), for D'Annunzio & Sons and another, respondents.

Before: LAHTINEN, J.P., GARRY, EGAN JR. and ROSE, JJ.

Opinion

LAHTINEN, J.P.

Appeal from a decision of the Workers' Compensation Board, filed July 2, 2013, which ruled that claimant did not sustain causally related injuries to his neck and back.

Claimant was awarded workers' compensation benefits for injuries to his ribs, chin, right shoulder and left knee after he was involved in a motor vehicle accident while working. The Workers' Compensation Law Judge determined, however, that claimant had failed to establish causally related injuries to his neck and back. Upon review, the Workers' Compensation Board affirmed this decision and claimant now appeals.

We affirm. Claimant bore the burden of establishing by competent medical evidence that his claimed injuries to his neck and back were causally related to his employment (see Matter of Dizenzo v. Henderson & Johnson, 114 A.D.3d 1014, 1014, 980 N.Y.S.2d 176 [2014] ; Matter of Jaquin v. Community Covenant Church, 69 A.D.3d 998, 999, 891 N.Y.S.2d 560 [2010] ). Claimant's treating physician opined that claimant's neck and back pain were causally related to the work accident. He testified, however, that this opinion was based solely upon claimant's subjective complaints and that he has never diagnosed claimant with any injuries to his neck or back, nor has he provided any treatment to those areas. Claimant's pain management physician testified that he began treating claimant for neck and back pain five years after the accident, but he did not know the extent of claimant's injuries to these areas and could not give an opinion as to whether the pain was related to the accident. The employer's medical expert, who examined claimant and reviewed his medical records, testified that claimant only complained to him of pain to his right shoulder and left knee. Regarding claimant's neck and back, the expert diagnosed a cervical strain and a lumbar radiculopathy that had both resolved. He further testified that he could not opine that any injuries to claimant...