State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 13, 2014 518434 

________________________________

In the Matter of the Claim of

GERARD CUNNINGHAM,

Appellant,

v

NEW YORK CITY TRANSIT MEMORANDUM AND ORDER

AUTHORITY,

Respondent.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 6, 2014

Before: Lahtinen, J.P., McCarthy, Egan Jr., Devine and

 Clark, JJ.

__________

Geoffrey Schotter, New York City, for appellant.

Weis, Wexler & Wornow, PC, New York City (Lauren M. Bilasz

of counsel), for New York City Transit Authority, respondent.

__________

Lahtinen, J.P.

Appeal from a decision of the Workers' Compensation Board,

filed April 9, 2013, which ruled that claimant did not sustain a

causally related occupational disease and denied his claim for

workers' compensation benefits.

Claimant sustained serious injuries to his neck, back and

left shoulder as the result of 1988 and 2003 automobile accidents

that were not work related. He continued working as a car

inspector for the self-insured employer until 2010, when he
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developed incapacitating neck, back and leg pain. Claimant

thereafter applied for workers' compensation benefits, asserting

that his physical problems and a consequential psychiatric injury

were related to repetitive work-related tasks and constituted an

occupational disease. The employer failed to timely file a

notice of controversy and, as such, was precluded from submitting

evidence on the issue of whether claimant's condition arose out

of and in the course of his employment (see Workers' Compensation

Law § 25 [2] [b]; Matter of Cappellino v Baumann & Sons Bus Co.,

18 NY3d 890, 891-892 [2012]). A Workers' Compensation Law Judge

nevertheless found the opinions of claimant's treating physicians

regarding causation to be incredible and disallowed the claim. 

The Workers' Compensation Board upheld that determination, and

claimant now appeals.

We affirm. The employer's failure to timely file a notice

of controversy did not "relieve[] claimant from his burden to

demonstrate a causal relationship" between his employment and

medical condition (Matter of Lumia v City of N.Y., Off. of Queens

Borough President, 21 AD3d 600, 601 [2005]; see Matter of Coleman

v Schenectady County Dept. of Social Servs., 80 AD3d 837, 838

[2011]). Claimant accordingly submitted undisputed medical

evidence to draw that causal link, which the Board was free to

"reject . . . as incredible or insufficient" (Matter of Jaquin v

Community Covenant Church, 69 AD3d 998, 1000 [2010]; accord

Matter of Kondylis v Alatis Interiors Co., Ltd., 116 AD3d 1184,

1186 [2014]). The record here reflects that claimant has been

receiving related medical treatment from at least 2002 onward. 

Claimant sought more intensive treatment after his pain worsened

in 2010, but no physician drew a causal link between the

condition and his employment until he raised the issue with his

physicians at a friend's urging. An orthopedic surgeon who

treated claimant further testified that claimant gave conflicting

accounts as to how he had aggravated the condition in 2010 and

that claimant's spinal and shoulder problems could have resulted

from degenerative changes. The Board was free to reject this

less-than-compelling medical evidence as incredible and, as such,

substantial evidence supports its finding that claimant did not

show the existence of a causally related occupational disease

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

[2014]; Matter of Jaquin v Community Covenant Church, 69 AD3d at
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1000; Matter of Newton v Sears Roebuck & Co., 293 AD2d 862, 863-

864 [2002]).

Claimant's remaining arguments have been examined and found

to lack merit.

McCarthy, Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court