State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 12, 2015 519285
________________________________
In the Matter of the Claim of
GERALD A. LOSARDO,
Appellant,
v
BAXTER HEALTHCARE CORPORATION MEMORANDUM AND ORDER
et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: January 13, 2015
Before: Peters, P.J., Rose, Egan Jr. and Clark, JJ.
__________
Law Offices of Joseph A. Romano, New York City (Anthony
Brooks-Morgese of counsel), for appellant.
Foley, Smit, O'Boyle & Weisman, New York City (David L.
Wecker of counsel), for Baxter Healthcare Corporation and
another, respondents.
__________
Egan Jr., J.
Appeal from a decision of the Workers' Compensation Board,
filed July 31, 2013, which ruled that claimant did not sustain a
compensable injury and denied his claim for workers' compensation
benefits.
Claimant, a truck driver, applied for workers' compensation
benefits in March 2009, alleging that he injured his back in
October 2007 while unloading a delivery truck. Following a
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hearing, at which claimant and his treating physicians appeared
and testified, a Workers' Compensation Law Judge (hereinafter
WCLJ) found that claimant had sustained a work-related injury and
established the claim. The employer and its workers'
compensation carrier sought review by the Workers' Compensation
Board contending, among other things, that there was no credible
evidence to support the WCLJ's decision. The Board agreed and
reversed the WCLJ's decision finding, among other things, that
the medical evidence did not establish that claimant had suffered
a compensable injury. This appeal by claimant ensued.
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 Rolleri v Mastic Beach Ambulance Co., Inc., 106 AD3d
1292, 1292 [2013], lv denied 21 NY3d 865 [2013] [citations
omitted]; accord Matter of Wait v Hudson Val. Community Coll.,
120 AD3d 1456, 1456 [2014]). Here, claimant testified that he
injured his back at work on October 1, 2007, that he notified his
employer the following day and that he immediately sought medical
treatment.1 As the Board aptly observed, however, the medical
evidence adduced at the hearing does not support claimant's
assertion that he suffered a work-related accident.
Although many of the salient medical records are largely
illegible, claimant's treating physician testified that claimant
presented in his office on Wednesday, October 3, 2007 complaining
of pain in his left arm, numbness in his mouth, back pain,
fatigue and cold feet. Although the physician noted that
claimant lifted heavy objects as part of his job, no mention is
made of when or how claimant injured his back, and the physician
acknowledged that claimant previously had been treated for back
pain by another provider. When claimant returned for a follow-up
visit one week later, the physician noted that claimant's "back
went out" the preceding Monday and that claimant reported
1
According to claimant, the employer discouraged him from
seeking workers' compensation benefits; claimant subsequently
applied for and received both short- and long-term disability
benefits.
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"lift[ing] some furniture at home." Again, no mention was made
of a work-related injury. Claimant then was referred to an
orthopedist, who evaluated him on October 15, 2007. According to
the orthopedist's records, claimant's back pain began at home on
October 10, 2007, this "recurrent" pain came on "[g]radually" and
claimant "denie[d] trauma." Given the Board's broad authority to
resolve credibility issues and draw reasonable inferences from
the conflicting evidence presented, we find that the Board's
decision is supported by substantial evidence and, as such, will
not be disturbed (see Matter of Dixon v Almar Plumbing, 111 AD3d
1230, 1231 [2013]; Matter of Rolleri v Mastic Beach Ambulance
Co., Inc., 106 AD3d at 1293).
Peters, P.J., Rose and Clark, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court