State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 19, 2017 523085 

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In the Matter of the Claim of

WILLIAM QUALLS,

Appellant,

v MEMORANDUM AND ORDER

BRONX DISTRICT ATTORNEY'S

OFFICE et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: November 22, 2016

Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

__________

John F. Clennan, Ronkonkoma, for appellant.

Zachary W. Carter, Corporation Counsel, New York City (Levi

Grosswald of counsel), for Bronx District Attorney's Office and

another, respondents.

__________

Egan Jr., J.

Appeals (1) from a decision of the Workers' Compensation

Board, filed September 9, 2015, which ruled that claimant did not

sustain a causally related disability and denied his claim for

workers' compensation benefits, and (2) from a decision of said

Board, filed December 21, 2015, which denied claimant's

application for reconsideration and/or full Board review.

On the evening of November 3, 2012, claimant, an

investigator with the Bronx District Attorney's Office, suffered
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an ischemic stroke at his residence and thereafter filed a claim

for workers' compensation benefits. Following a hearing, a

Workers' Compensation Law Judge found that claimant's stroke was

causally related to his employment and awarded benefits. Upon

review, however, the Worker's Compensation Board reversed,

finding that there was insufficient medical evidence to establish

the requisite causal relationship between claimant's employment

and his disability. Claimant's subsequent application for

reconsideration and/or full Board review was denied, and these

appeals ensued.1

We affirm. As the party seeking benefits, claimant bore

the burden of establishing – by competent medical evidence – a

causal connection between his employment and the claimed

disability (see Matter of Poverelli v Nabisco/Kraft Co., 123 AD3d

1309, 1310 [2014]; Matter of Bailey v Ben Ciccone, Inc., 104 AD3d

1017, 1017 [2013]). In this regard, "[w]hile the Board cannot

rely upon expert opinion evidence that amounts to nothing more

than pure speculation, the Workers' Compensation Law does not

require that medical opinions be expressed with absolute or

reasonable medical certainty" (Matter of Estate of Harris v

General Elec. Co., 115 AD3d 1133, 1134 [2014] [internal quotation

marks, ellipsis and citations omitted]). Rather, "[a]ll that is

required is that it be reasonably apparent that the expert meant

to signify a probability as to the cause and that his or her

opinion be supported by a rational basis" (id. at 1134 [internal

quotation marks, brackets and citations omitted]; see Matter of

Norton v North Syracuse Cent. School Dist., 59 AD3d 890, 891

[2009]). Applying that standard to the evidence adduced at the

hearing, the Board found claimant's medical proof to be lacking –

a finding that is, in turn, supported by the record before us.

Claimant testified that the stress caused by his assignment

to protect a key witness in a murder trial resulted in his

1 Inasmuch as claimant did not raise any arguments in his

brief regarding the Board's denial of his application for

reconsideration and/or full Board review, we deem his appeal from

that decision to be abandoned (see Matter of Krietsch v

Northport-East Northport UFSD, 116 AD3d 1255, 1256 n 2 [2014]).
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stroke, and his treating physician opined – in his written report

– that such work-related stress was "likely to be a contributory

factor to [claimant's] ischemic stroke."2 Although claimant's

physician reiterated that opinion during the course of his

deposition, again stating that such stress was "likely to be a

contributory factor" with respect to claimant's stroke, the

physician also variously testified that work-related stress "may

have been" or "could've been a contributory factor." In this

regard, claimant's physician again acknowledged that claimant had

"other multiple risk factors for ischemic stroke" – with

hypertension being "the major risk factor" – leading claimant's

physician to conclude that work-related stress "most likely was

not the only factor" underlying claimant's stroke. Indeed,

claimant's physician confirmed that, even "outside of the stress

that he was facing at work," claimant "[a]bsolutely" would "still

be at risk for the same kind of stroke." Finally, claimant's

physician conceded that, while the claimed stress "certainly may

have been a contributory factor, . . . there's absolutely no way

to tell if [claimant] would have had [the stroke] without the

stress" as "[t]here's no objective way of testing it."

Given claimant's multiple and independent risk factors for

a stroke, as well as his physician's equivocal testimony as to

the role that stress "may" or "could" have played in contributing

to claimant's disability, the Board was free to characterize –

and ultimately reject – the medical evidence offered by claimant

as speculative (see Matter of Bradley v US Airways, Inc., 58 AD3d

1043, 1044-1045 [2009]). Absent sufficient medical evidence to

establish a causal relationship between claimant's employment and

his disability, the Board's decision must be affirmed.

Garry, J.P., Rose, Clark and Mulvey, JJ., concur.

2 The physician's written report also noted, however, that

claimant had "a number of risk factors for ischemic stroke,"

including diabetes, hypertension and hyperlipidemia, and the

physician acknowledged during his deposition testimony that

claimant "was on multiple medications" to treat his documented

diabetes, high blood pressure and high cholesterol.
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ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court