Opinion
Decided June 14, 2001.
Appeal from a decision of the Workers' Compensation Board, dated November 14, 2001, bringing up for review a prior nonfinal order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered December 24, 1997, which, with two justices dissenting, (1) reversed a decision of the Workers' Compensation Board finding that claimant did not sustain an accidental injury or an occupational disease within the meaning of the Workers' Compenstation Law and denying her claim for workers' compensation benefits, and (2) remitted the matter to the Workers' Compensation Board for further proceedings.
Submitted by Richard Guttentag, for appellant.
Submitted by Richard J. Brandenstein, for individual respondent.
Before: Chief Judge, Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The decision of the Workers' Compensation Board awarding benefits and the order of the Appellate Division brought up for review should be reversed, with costs, and the matter remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court.
Claimant, a former 911 operator, filed a claim for workers' compensation benefits, alleging that work-related stress caused her to suffer depression and ultimately leave her job. The Workers' Compensation Board determined that claimant did not sustain an accidental work-related injury because the stress she was exposed to as a result of the rotating-shift schedule was not more than that normally encountered in the workplace (see, Workers' Compensation Law § 2). The Appellate Division divided on whether substantial evidence supports the Board's determination, three Justices concluding it does not and two that it does. We agree with the dissenting Justices that the Board's determination is supported by substantial evidence and is therefore binding on the courts (see, Matter of Hill v. Thompson, 61 N.Y.2d 1018, 1019).
This appeal brings up for review the Appellate Division order reversing the determination of the Workers' Compensation Board. Upon reversal, the Board subsequently concluded that claimant had a work-related injury and awarded benefits.
Decision appealed from and order of the Appellate Division brought up for review reversed, with costs, and matter remitted to the Appellate Division, Third Department, for consideration of issues raised but not determined on the appeal to that court, in a memorandum.