State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 522424 

________________________________

In the Matter of the Claim of 

LYNNE CUVA,

Appellant,

v

STATE INSURANCE FUND et al., MEMORANDUM AND ORDER

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 19, 2016

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

__________

Law Firm of Alex C. Dell, PLLC, Albany (Mindy E. McDermott

of counsel), for appellant.

Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of

counsel) and William O'Brien, State Insurance Fund, Albany, for

State Insurance Fund and another, respondents.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed March 27, 2015, which, among other things, ruled that

claimant did not suffer an accidental injury arising out of and

in the course of her employment and denied her claim for workers'

compensation benefits.

Claimant, a long-term employee of the Workers' Compensation

Board, was working in a supervisory position as a program manager

on March 7, 2013 when an incident occurred during a work-related
-2- 522424 

discussion between claimant and one of her subordinates, an

examiner. Claimant filed a workplace violence report, which was

later determined to be unfounded by the Director of Human

Resources. At the time, claimant's bureau, which was operating

under a significant backlog and had experienced a high turnover

rate, was being evaluated and reorganized, and claimant was

reassigned to a new unit in April 2013. After the incident,

claimant, who had a history of treatment for non-work-related

anxiety, depression and posttraumatic stress disorder

(hereinafter PTSD), reportedly experienced increased symptoms of

anxiety and depression, as well as panic attacks, insomnia and

difficulty concentrating for which she sought treatment from her

internal medicine physician. 

In January 2014, after claimant was again reassigned, she

filed a claim for workers' compensation benefits alleging that

she had felt threatened during the March 2013 encounter and that

it had caused her stress, panic attacks and digestive problems. 

Claimant stopped working in June 2014 on the advice of her

physician, who concluded that she was completely disabled due to

her ongoing mental health problems, and she filed another claim

in July 2014 alleging that the incident had also caused PTSD. 

She attributed her symptoms to being "threatened" by her coworker

and harassed for filing a workplace violence report and required

by the employer to undergo a psychological exam in June 2013. 

After a series of hearings and the submission of claimant's

medical records and the reports and deposition testimony of her

treating physician, as well as an independent medical exam by the

workers' compensation carrier's consultant, a Workers'

Compensation Law Judge (hereinafter WCLJ) issued an amended

decision disallowing the claim on the grounds, among others, that

claimant did not experience work-related stress greater than what

is experienced in a normal work environment, and that the

exacerbation of her mental health symptoms did not arise out of

and in the course of the March 7, 2013 incident or its aftermath. 

The WCLJ also found that her claim of workplace violence was

unsubstantiated. The Workers' Compensation Board affirmed, and

claimant now appeals. 
-3- 522424 

We affirm. It is well established that "mental injuries

caused by work-related stress are compensable if the claimant can

establish that the stress that caused the injury was greater than

that which other similarly situated workers experienced in the

normal work environment" (Matter of Lozowski v Wiz, 134 AD3d

1177, 1178 [2015] [internal quotation marks and citation

omitted]; see Workers' Compensation Law § 2 [7]; Matter of Guillo

v NYC Hous. Auth., 115 AD3d 1140, 1140 [2014]; Matter of

Witkowitch v SUNY Alfred State Coll., 80 AD3d 1099, 1100 [2011]). 

In resolving that factual question, the Board's determination

will not be disturbed provided that it is supported by

substantial evidence (see Matter of Lozowski v Wiz, 134 AD3d at

1178). 

While the medical evidence concluded, based upon claimant's

self reporting, that the March 7, 2013 incident caused or

exacerbated her mental health problems, substantial evidence

supports the Board's factual determination that the incident was

not compensable on the ground that the work-related stress

suffered by claimant that led to her anxiety, PTSD and depression

was not "greater than that which other similarly situated workers

experienced in the normal work environment" (Matter of Lozowski v

Wiz, 134 AD3d at 1178 [internal quotation marks and citation

omitted]). Regarding the incident, claimant testified that she

was standing outside the examiner's cubicle discussing a work

issue when he became angry, grabbed the arms of his chair and

began "shaking," gritting his teeth and "seething," making a

hissing sound. However, he remained seated, facing his computer

and did not make verbal or physical threats or raise his voice. 

While claimant testified that the examiner swore at her during

the encounter, the WCLJ credited a coworker who testified that

she had overheard "a work interaction" in which claimant and the

examiner "disagreed" and that she had informed claimant, after

the incident, that the examiner used profanity after claimant

walked away from the disagreement. The WCLJ also discredited

claimant's account of the incident and her claim that this brief

episode left her terrified, based upon her testimonial demeanor

as well as her inconsistent accounts and actions after the

incident, including claimant's return to the examiner's work area

shortly after the incident to speak with a coworker; her treating

physician's testimony that she had inconsistently reported that
-4- 522424 

the examiner had made knifelike gestures at her; her testimony

and emails establishing that, the day after the incident, she had

a meeting with the examiner and later reported that the matter

was "settled" and that they were "moving forward with a good

working relationship"; and her reassignment to another unit in

April 2013 where she did not work with or supervise the examiner. 

Deferring to the Board's credibility determinations (see

Matter of Hill v Shoprite Supermarkets, Inc., 140 AD3d 1564, 1565

[2016]), we find that the record as a whole supports its

conclusion that this was, at most, "an isolated incident of

insubordination" to which the employer appropriately responded,

which was not so improper or extraordinary as to give rise to a

viable claim for a work-related injury. Accordingly, we find no

basis to disturb the Board's determination that claimant's

work-related stress did not exceed that which could be expected

by a supervisor in a normal work environment (see Matter of

Lozowski v Wiz, 134 AD3d at 1178; Matter of Guillo v NYC Hous.

Auth., 115 AD3d at 1141). 

Finally, we are unpersuaded by claimant's contention that

the unannounced presence at the hearing of the supervising WCLJ

(the presiding WCLJ's supervisor) or claimant's employment by the

Board gave rise to an appearance of impropriety or conflict of

interest requiring recusal of the presiding WCLJ.1 While the

supervising WCLJ acknowledged, when asked, that it was not normal

practice to observe hearings, there was nothing inappropriate in

the supervisory observation, and claimant failed to identify any

basis for the presiding WCLJ's mandatory or discretionary recusal

(see Judiciary Law § 14; see also 22 NYCRR 100.2; People v

Alteri, 47 AD3d 1070, 1070-1071 [2008]). Moreover, a review of

the record discloses no indication of partiality, appearance of

impropriety or unfairness in the conduct of the hearings or the

1 Claimant's request that her claim be adjudicated by an

outside arbiter pursuant to Workers' Compensation Law § 20 (2)

was denied in writing on the ground that her title as a Principal

Workers' Compensation Examiner did not qualify her for this

Employee Claim Resolution Program. Claimant does not make any

argument on appeal that this determination was incorrect.
-5- 522424 

determination of noncompensability. Claimant's remaining

contentions have been reviewed and, to the extent that they are

preserved, have been determined to lack merit.

Peters, P.J., Garry, Egan Jr. and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court