Zeltman v. Infinigy Eng'g, PLLC

211 A.D.3d 1280

180 N.Y.S.3d 365

In the Matter of the Claim of Edward ZELTMAN, Appellant,

v.INFINIGY ENGINEERING, PLLC, et al., Respondents.

Workers’ Compensation Board, Respondent.

534627

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

Calendar Date: November 15, 2022

Decided and Entered: December 15, 2022

Schotter Millican, LLP, New York City (Geoffrey Schotter of counsel), for appellant.

Sullivan Keenan & Oliver, LLP, Albany (John M. Oliver of counsel), for Infinigy Engineering, PLLC and others, respondents.

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from a decision of the Workers’ Compensation Board, filed July 2, 2021, which ruled that claimant did not sustain causally-related injuries and denied his claim for workers’ compensation benefits.

Claimant, a construction manager, filed a claim for workers’ compensation benefits on March 22, 2019, alleging that he injured his neck and lower back on March 15, 2019 in the course of lifting and moving heavy equipment at the home of the chief executive officer (hereinafter the CEO) of his employer.¹ Claimant was medically examined on the day of the alleged incident, reporting low back pain that radiated due to a lifting incident that day. On March 29, 2019, claimant first reported to his treating physician that, in addition to his lifting-related back injury, he had also slipped and fallen at the home of the CEO and suffered a left shoulder injury; this injury had not been previously noted on the claim form. Claimant thereafter maintained that he had been involved in two separate incidents at different locations causing injuries on March 15, 2019.

Specifically, claimant testified that he injured his left shoulder when he slipped and fell on ice shortly after he and his coworkers arrived to pick up heavy equipment, while waiting for the moving truck to back up. He further claimed that the onset of shoulder pain was delayed by one or two weeks and that the fall was apparently not witnessed by anyone nor reported to his supervisors or coworkers. Claimant had no explanation for why the shoulder injury was not included on any C–3 form. The CEO testified that he was present but did not witness a fall, claimant did not report a fall or shoulder pain to him and he observed no signs that claimant had fallen.

Claimant further recounted that he continued to work after falling, assisting three coworkers in loading the heavy equipment – estimated to weigh between 600 and 800 pounds – into the truck, which was then delivered to another location, and, while assisting with loading another similar piece of heavy equipment onto the truck at that location, he sustained a second injury to his lower back and neck. Claimant's manager testified that claimant and his coworkers returned to work after the heavy equipment deliveries, claimant completed further work and did not complain about any injuries or appear to be injured.

Claimant acknowledged that, about a month prior to these alleged incidents, his employer had raised issues about problems with his work performance and that, the day before these alleged incidents, he was advised that he was being immediately reassigned to a position in North Carolina, which he opposed. The treatment records from the day of the incidents reflect that claimant attempted, unsuccessfully, to persuade the provider to write a note that he was unable to work for two months due to his alleged work-related injuries. Claimant reported to the work warehouse on March 18, 2019 and proceeded to work, indicating that he could not drive and did not want to relocate to North Carolina; he reported his back injury to his manager for the first time and provided a doctor's note regarding that injury but made no mention of a shoulder injury or a fall, and he was fired the next day for failing to relocate. Claimant further testified that, in February 2020, his back seized up while exiting a car, causing claimed consequential knee injuries.

Several treating orthopedists testified that there was a causal relationship between claimant's back, neck, shoulder and knee injuries, opinions that were later established to be based in part on incomplete or inaccurate medical histories given to them by claimant. An independent medical examiner concluded that claimant's injuries were causally related, but further noted that MRI reports reflected degenerative changes in his cervical and lumbar spine that pre-dated and are unrelated to the incidents. A Workers’ Compensation Law Judge (hereinafter WCLJ) disallowed the claim, finding that claimant was "an unreliable narrator," citing numerous factors in finding that he was not credible, including his delay in reporting the alleged slip and fall and his provision of inconsistent medical histories to his medical providers, rendering their opinions on causation unreliable and not credible. On appeal, the Worker's Compensation Board agreed with the WCLJ's credibility findings and conclusion that claimant had failed to submit credible evidence that he sustained causally-related injuries. Claimant appeals.

We affirm. An injury is compensable only where it "aris[es] out of and in the course of employment" ( Workers’ Compensation Law § 2[7] ; see Workers’ Compensation Law § 10[1] ; Matter of Brennan v. New York State Dept. of Health, 159 A.D.3d 1250, 1251, 73 N.Y.S.3d 277 [3d Dept. 2018] ). As the party seeking benefits, "[a] claimant bears the burden of establishing, by competent...