Leon v. Monadnock Constr. Inc.

208 A.D.3d 1415

174 N.Y.S.3d 484

In the Matter of the Claim of Francisco LEON, Claimant,

v.MONADNOCK CONSTRUCTION INC. et al., Appellants.

Workers’ Compensation Board, Respondent.

534352

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

Calendar Date: August 17, 2022

Decided and Entered: September 1, 2022

Goldberg Segalla, Rochester (Matthew J. DeMarco of counsel), for appellants.

Letitia James, Attorney General, New York City (Donya Fernandez of counsel), for respondent.

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

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from a decision of the Workers’ Compensation Board, filed April 21, 2021, which ruled that claimant sustained an accidental injury arising out of and in the course of his employment.

In February 2020, claimant, a construction worker, filed a claim for workers’ compensation benefits alleging that, on January 30, 2020, he sustained work-related injuries to his right ankle, neck, shoulders and back when he fell from a scaffold at work. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) controverted the claim. Following hearings, an independent medical examination and the depositions of claimant's treating medical providers, a Workers’ Compensation Law Judge established the claim, finding that claimant sustained accidental injuries to his right foot, lower back, right shoulder and neck that arose out of and in the course of his employment. Upon administrative review, the Workers’ Compensation Board affirmed. This appeal by the carrier ensued.

We affirm. "Whether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed when supported by substantial evidence" ( Matter of Mendrok v. New York City Tr. Auth., 202 A.D.3d 1173, 1174, 163 N.Y.S.3d 290 [3d Dept. 2022] [internal quotation marks and citations omitted]; accord Matter of Docking v. Lapp Insulators LLC, 179 A.D.3d 1275, 1275–1276, 116 N.Y.S.3d 440 [3d Dept. 2020] ). "An injury is compensable under the Workers’ Compensation Law only where it arises out of and in the course of the employment" ( Matter of Vasquez v. Northstar Constr. Group Servs. Inc., 205 A.D.3d 1250, 1251, 169 N.Y.S.3d 375 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of McGee v. Johnson Equip. Sales & Serv., 184 A.D.3d 935, 935, 124 N.Y.S.3d 497 [3d Dept. 2020] ). "Although Workers’ Compensation Law § 21(1) provides a presumption that an accident that occurs in the course of employment also arises out of that employment, the statutory presumption cannot be used to establish that an accident occurred in the first instance, and it does not wholly relieve a claimant of the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment" ( Matter of Sarmiento v. Empire Contr. of N.Y. Corp., 188 A.D.3d 1384, 1384–1385, 135 N.Y.S.3d 189 [3d Dept. 2020] [internal quotation marks and citations omitted]).

Claimant, through an interpreter, testified that on the day of the incident he was coming down from the upper part of a scaffold when his foot got turned, causing him to fall down from a height of approximately 12 feet and land on construction debris consisting of, among other things, bricks and dry cement. Claimant explained that, as a result of his fall, he injured his right ankle, right knee, shoulders, elbows, neck and back. After the accident, which was witnessed by a coworker, claimant explained that he notified his supervisor and went to urgent care. The contemporaneous urgent care records from when claimant was examined later that day reflect, consistent with his testimony, that he presented with, among other things, neck, right shoulder, right ankle and lower body pain and, following X-rays, claimant was provided with discharge instructions for a cervical sprain, lumbar sprain, contusion of the right shoulder and a right ankle sprain. Robert Reiss, claimant's chiropractor who first examined claimant several days after the incident and continued to provide claimant periodic treatment, testified that he also diagnosed clai...