State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 2, 2014 518426 

________________________________

In the Matter of the Claim of 

DONALD ANDERSON,

Appellant,

v

NEW YORK CITY DEPARTMENT OF MEMORANDUM AND ORDER

DESIGN & CONSTRUCTION,

Respondent.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 5, 2014

Before: Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

__________

Geoffrey Schotter, New York City, for appellant.

Meghan McKenna, City of New York Law Department, New York

City, for New York City Department of Design & Construction,

respondent.

__________

Clark, J.

Appeal from a decision of the Workers' Compensation Board,

filed April 25, 2013, which ruled that claimant did not sustain a

further causally related injury.

Claimant was involved in a work-related automobile accident

in 2002, and he sought workers' compensation benefits for

injuries to his head, neck and right shoulder. The claim was

established for injuries to the neck and back later that year,

with claimant directed "to submit medical evidence for all
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additional sites claimed." The Workers' Compensation Board found

that claimant had no continuing disability in 2005, crediting

medical evidence that he had been magnifying his symptoms and

that objective testing did not support his claims of continuing

disability. He was thereafter diagnosed as suffering from a

partial right rotator cuff tear in 2009 and, alleging that the

tear was related to the 2002 accident, claimant sought to include

it under his workers' compensation claim. The Board ultimately

rejected that application, finding that claimant had not

established a causal link between the 2002 accident and the tear. 

Claimant now appeals.

We affirm. Claimant was obliged to establish a causal

relationship between the 2002 accident and his right rotator cuff

tear (see Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014,

1014 [2014]; Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998,

998 [2013]). Claimant reported suffering from right shoulder

pain after the 2002 accident, but that pain was diagnosed as

stemming from a sprain or strain and was categorized by one

examining doctor as subjective. Notwithstanding the lack of

contemporaneous evidence to demonstrate that claimant had torn

his rotator cuff in the 2002 accident, claimant's present

orthopedist opined, after reviewing an MRI taken in 2009, that he

had, in fact, sustained the injury in the accident. The

orthopedist also admitted, however, that age-related rotator cuff

degeneration occurred even without any traumatic injury. The

Board found that the orthopedist had not "testif[ied]

convincingly in support of a causal relationship" given these

facts and, inasmuch as claimant submitted no other proof to link

the rotator cuff tear to the accident, the Board's decision is

supported by substantial evidence in the record (Matter of

Satalino v Dan's Supreme Supermarket, 91 AD3d 1019, 1020 [2012];

see Matter of Dizenzo v Henderson & Johnson, 114 AD3d at 1014;

Matter of Jaquin v Community Covenant Church, 69 AD3d 998, 1000

[2010]).

Stein, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court