Kennedy v. 3rd Track Constructors

213 A.D.3d 1005

182 N.Y.S.3d 803

In the Matter of the Claim of Alastair KENNEDY, Appellant,

v.3RD TRACK CONSTRUCTORS et al., Respondents.

Workers’ Compensation Board, Respondent.

533556

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 14, 2022

Decided and Entered: February 2, 2023

Goldberg & Allen, LLC, Mineola (Andrew P. Goldberg of counsel), for appellant.

Chartwell Law, New York City (Misha Iokheles of counsel), for 3rd Track Constructors and another, respondents.

Before: Egan Jr., J.P., Clark, Pritzker, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a decision of the Workers’ Compensation Board, filed May 11, 2021, which ruled, among other things, that claimant did not sustain causally-related injuries to his neck and left shoulder and denied his claim for workers’ compensation benefits.

Claimant, an operating engineer, sustained work-related injuries in October 2019 when he slipped and fell into a hole at a job site. The hole, alleged by claimant as being between five and eight feet deep, contained a directional drilling tool known as a Pow–R Mole, and claimant purportedly fell – up to his armpits – a two-foot gap between the Pow–R Mole and the side of the excavated hole, which had not yet been backfilled. Claimant subsequently filed a claim for workers’ compensation benefits alleging injuries to his left shoulder, foot and ankle. The employer's workers’ compensation carrier initially accepted the claim for injuries to claimant's left foot and ankle, and claimant underwent surgery on his left shoulder in March 2020 and on his neck in May 2020. In the interim, claimant alleged that he injured his neck during the incident; the carrier contested the neck and left shoulder injuries and raised the possibility that claimant violated Workers’ Compensation Law § 114–a.

Following various hearings, independent medical examinations and depositions of evaluating physicians, a Workers’ Compensation Law Judge (hereinafter WCLJ) found, among other things, that claimant's testimony regarding the manner in which the accident occurred, as well as any prior injuries he had sustained, was not credible. As a result, the WCLJ, among other things, declined to establish claimant's neck as an additional injury site¹ and, further, found claimant's misrepresentations to be sufficiently egregious as to sustain a violation of Workers’ Compensation Law § 114–a and warrant imposition of both a mandatory and a discretionary penalty. Upon administrative review, the Workers’ Compensation Board – in a detailed decision – affirmed the WCLJ's decision and amended decision and, among other things, disallowed the claims for left shoulder and neck injuries and upheld the mandatory and discretionary penalties imposed. This appeal by claimant ensued.

With respect to the additional injury sites alleged, i.e., claimant's left shoulder and neck, "[t]he Board is empowered to determine the factual issue of whether a causal relationship exists based upon the record, and its determination will not be disturbed when supported by substantial evidence" ( Matter of Blanch v. Delta Air Lines, 204 A.D.3d 1203, 1204–1205, 167 N.Y.S.3d 204 [3d Dept. 2022] [internal quotation marks and citations omitted]; accord Matter of Sudnik v. Pinnacle Envtl. Corp., 190 A.D.3d 1067, 1068, 139 N.Y.S.3d 432 [3d Dept. 2021] ). To that end, claimant bore the burden of establishing, "by competent medical evidence, the existence of a causal connection between his ... injury and his ... employment" ( Matter of Minichino v. Amazon.com DEDC LLC, 204 A.D.3d 1289, 1291, 167 N.Y.S.3d 594 [3d Dept. 2022] [internal quotation marks and citation omitted]; see Matter of Guna v. Delta Airlines, Inc., 202 A.D.3d 1190, 1191, 163 N.Y.S.3d 299 [3d Dept. 2022] ). In assessing such proof, "the Board has broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inference from the evidence in the record" ( Matter of Salas v. Tom Cat Bakery, Inc., 193 A.D.3d 1225, 1227, 147 N.Y.S.3d 154 [3d Dept. 2021] [internal quotation marks and citations omitted]; accord Matter of Sausto v. Wildlife Conservation Socy., 208 A.D.3d 1565, 1567, 175 N.Y.S.3d 367 [3d Dept. 2022] ).

In disallowing the claim for the additional injury sites, the Board noted that "claimant's testimony regarding the mechanism of injury for the additional sites was not corroborated by the employer's witnesses" and that his corresponding "account of the accident and description of how the left shoulder and neck injuries occurred" was not credible. Upon reviewing the record as a whole, we find that the Board's conclusions in this regard are supported by substantial evidence and, as such, will not be disturbed.

As noted previously, claimant testified that he fell – "way down" and up to his armpits – into the gap between the Pow–R Mole and the side of the excavated hole. According to claimant, the gap in question was approximately two feet wide, and he fell roughly five to eight feet,² as a result of which he was "buried," had to be pulled out by his coworkers and had to lie on the ground for roughly 20 minutes after the accident. Although the accident was apparently unwitnessed, two of claimant's coworkers, who were placing boards around the excavated hole, contradicted claimant's description of the gap, as well as the degree to which claimant actually fell into it. According to the coworkers, the gap was 6 to 12 inches wide and, at best, one of claimant's legs fell into it.³ Both of claimant's coworkers also testified that claimant got up from the ground on his own within a few minutes of falling. The Board, as "the sole arbiter of witness credibility" ( Matter of Elias–Gomez v. Balsam View Dairy Farm, 162 A.D.3d 1356, 1358, 78 N.Y.S.3d 515 [3d Dept. 2018] [internal quotation marks and citations omitted]), was well within its discretion to credit the coworkers’ testimony – particularly given the photographs of the accident scene (and corresponding gap) contained in the record.

In addition to the foregoing, the Board found that claimant was also inconsistent in reporting any prior neck or left shoulder injuries to the various physicians who rendered opinions in this matter. For example, although claimant at times denied sustaining a prior injury to his left shoulder, the record reflects that, in August 2019, claimant complained of "severe left shoulder pain," which had persisted for nine months and for which he received a cortisone injection. Similarly, although claimant denied sustaining a prior neck injury, the record reveals that claimant was injured in a work-related motor vehicle accident in 1995 and that he thereafter complained of and sought treatment for neck pain. Additionally, claimant advised one of his treating physicians in January 2020 that he had "immediate neck pain" as a result of falling into the gap, but claimant did not list his neck as an injury site on the C–3 form filed in this matter, and the physician who evaluated claimant within two weeks of the accident noted that claimant had "full, pain free, stable range of motion of the cervical spine."

Numerous physicians reported that their opinions as to causal relationship were based, at least in part, upon claimant's description of the accident site and...