State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522903 

________________________________

In the Matter of the Claim of

JAMES CIULLO,

Appellant,

v

MEMORANDUM AND ORDER

GORDON L. SEAMAN INC. et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

John F. Clennan, Ronkonkoma, for appellant.

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

another, respondents.

__________

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
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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 AD3d 1380, 1381 [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 AD3d 1010, 1011

[2012]; Matter of Siliverdis v Sea Breeze Servs. Corp., 82 AD3d

1459, 1460 [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
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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 resolution of

the issue at hand turns upon a credibility determination made by

the Board, to which we accord considerable deference (see Matter

of Siliverdis v Sea Breeze Servs. Corp., 82 AD3d at 1460; Matter

of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149,

1151 [2010]). Moreover, although claimant places much emphasis

on the presumption of compensability set forth in Workers'

Compensation Law § 21, this does not relieve him of the burden of

establishing that his injury arose out of and in course of his

employment (see Matter of Huggins v Masterclass Masonry, 83 AD3d

1345, 1347 [2011]; Matter of Bond v Suffolk Transp. Serv., 68

AD3d 1341, 1342 [2009]). Given that the record contains

substantial evidence to support the Board's finding that

claimant's back injury did not arise out of and in the course of

his employment, we find no reason to disturb its decision.

McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.

1 The testimony of a coworker who allegedly observed the

fall was apparently unavailable as he had ceased working for the

employer. Although claimant later located this individual and

submitted his affidavit for the Board to consider, claimant

failed to comply with the regulations governing the disclosure of

witnesses (see 12 NYCRR 300.38 [g] [7]) or request an adjournment

of the hearing to present his testimony. Therefore, the Board

did not err in failing to consider the affidavit. 
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court