State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 17, 2016 520744 

 521883

________________________________

In the Matter of the Claim of

SERGII SIENNIKOV,

Appellant,

v

MEMORANDUM AND ORDER

PROFESSIONAL GRADE CONSTRUCTION,

INC., et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: February 11, 2016

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

__________

Harris Law Group, LLP, Rego Park (Mark Muccigrosso of

Talkin, Muccigrosso & Roberts, LLP, New York City, of counsel),

for appellant.

Vecchione, Vecchione & Connors, LLP, Garden City Park

(Leslie Wong of counsel), for Professional Grade Construction,

Inc. and another, respondents.

__________

Egan Jr., J.

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

Board, filed July 2, 2014, which ruled that claimant did not

suffer a compensable injury and denied his claim for workers'

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

filed July 31, 2015, which denied claimant's request for

reconsideration and/or full Board review.
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Claimant, a construction helper, applied for workers'

compensation benefits in November 2012, alleging that he had

injured his left hip, back and head in a fall from scaffolding

onto a concrete floor on a construction site at approximately

11:30 a.m. on February 23, 2012. At a hearing, conflicting

testimony was offered by claimant, a coworker and the company

owner and foreperson, medical records were submitted and the

deposition testimony of claimant's treating physicians and the

workers' compensation carrier's consulting orthopedic surgeon

were introduced. A Workers' Compensation Law Judge (hereinafter

WCLJ) concluded that the employer had not rebutted the

presumption under Workers' Compensation Law § 21 and found that

claimant had sustained a work-related injury to his back and left

hip and established the claim. The employer and its carrier

sought review by the Workers' Compensation Board, contending that

the WCLJ's findings regarding notice, accident and causal

relationship, among others, were unsupported by the credible

evidence. By decision filed July 2, 2014, the Board agreed,

after undertaking a complete review of the record, and reversed,

finding, among other things, that there was insufficient credible

evidence to show that claimant suffered an injury in the course

of his employment on February 23, 2012. Claimant's application

for reconsideration and/or full Board review was denied by Board

decision filed July 31, 2015. Claimant now appeals from both

decisions.1

We affirm. "Whether a compensable accident has occurred

presents a question of fact for resolution by the Board and its

decision will be upheld when supported by substantial evidence"

(Matter of Losardo v Baxter Healthcare Corp., 126 AD3d 1164, 1165

[2015] [internal quotation marks and citations omitted]). 

Claimant testified that following this unwitnessed fall, he

promptly reported the accident to a superior and left work

1 Claimant raises no arguments in his appellate brief

regarding the denial of his request for reconsideration and/or

full Board review and, accordingly, 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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shortly thereafter without summoning an ambulance, was absent

from work the following day – a Friday – and returned to work the

following Monday; he continued to work, including performing

heavy lifting, until April 25, 2012, when he stopped working due

to pain. A coworker testified that he heard a crash and

thereafter saw claimant on the floor in pain, that claimant

reported the fall to the supervisor, who refused to help claimant

obtain medical treatment, and that claimant left work early. 

Claimant admittedly did not seek any medical treatment until

March 20, 2012 and, after X rays were taken, the physician told

him that there was "nothing wrong" and he could "continue to

work." While he claimed that he had told the physician that he

had fallen at work, no such medical records were produced. 

Claimant next sought medical treatment for a backache in June

2012 at an emergency room and then from his family physician,

attributing his back pain to heavy lifting within the previous

month; he was diagnosed with degenerative changes to his hip, but

the records do not reflect that he reported a work-related fall.2

Claimant first reported a workplace fall to a physical medicine

physician in November 2012, nine months after the accident, the

same day that he filed a claim for workers' compensation

benefits; while he told that physician that he had sought

treatment at an emergency room the day of the fall, no such

records were ever produced, and claimant himself conceded at the

hearing that he had not sought any medical treatment until almost

two months after the alleged fall.

By contrast, the employer's witnesses testified that they

never received notice of the accident, that timecard and payroll

records reflect that claimant worked and was paid for his full

shift on the day in question and that he lost no time and

continued to work until April 25, 2012, when he stopped reporting

and took a position with another construction company. Based

upon the testimony and records of the employer's witnesses, which

contradicted claimant's proof, and the lack of documentary

2 Although claimant's treatment records contain a reference

to a fall or jump "from a height some time ago," there is no

indication of a date or that the fall occurred at work.
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521883 

evidence or any contemporaneous medical records reflecting that

claimant sustained the described work-related injury, the Board

found that the testimony of claimant and his coworker was not

credible. The Board further determined that the medical

testimony of a causally-related injury, first reported nine

months after the alleged incident, was based solely upon the

history provided by claimant, which the Board found was "unworthy

of belief." Given the foregoing evidence and according deference

to the Board as "the sole arbiter of witness credibility" (Matter

of Dixon v Almar Plumbing, 111 AD3d 1230, 1231 [2013] [internal

quotation marks and citations omitted]), the Board was entitled

to reject claimant's testimony and proof, draw reasonable

inferences from the conflicting evidence and conclude that no

work-related accident had occurred, a finding supported by

substantial evidence (see Matter of Losardo v Baxter Healthcare

Corp., 126 AD3d at 1165).

Finally, contrary to the analysis of the WCLJ, Workers'

Compensation Law § 21, "which affords a presumption that an

unwitnessed or unexplained workplace accident arose out of the

injured person's employment, . . . cannot be utilized to

demonstrate that an accident occurred in the first place" (Matter

of Dixon v Almar Plumbing, 111 AD3d at 1231 n 1 [internal

quotation marks and citation omitted]). Claimant's remaining

arguments have been examined and determined to lack merit.

Garry, J.P., Lynch, Devine and Clark, JJ., concur.
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ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court