Opinion
08-25-2016
In the Matter of Paula OATHOUT, Respondent, v. AVERILL PARK CENTRAL SCHOOLS et al., Appellants. Workers' Compensation Board, Respondent.
Lemire, Johnson & Higgins, LLC, Malta (George B. Burke III of counsel), for appellants. Sullivan Keenan Oliver & Violando, LLP, Albany (Michael D. Violando of counsel), for Paula Oathout, respondent. Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for Workers' Compensation Board, respondent.
Lemire, Johnson & Higgins, LLC, Malta (George B. Burke III of counsel), for appellants.
Sullivan Keenan Oliver & Violando, LLP, Albany (Michael D. Violando of counsel), for Paula Oathout, respondent.
Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for Workers' Compensation Board, respondent.
Before: GARRY, J.P., EGAN JR., DEVINE, MULVEY and AARONS, JJ.
DEVINE, J. Appeals (1) from a decision of the Workers' Compensation Board, filed February 11, 2015, which ruled that claimant sustained a compensable injury, and (2) from a decision of said Board, filed June 3, 2015, which denied a request by the employer and its workers' compensation carrier for reconsideration and/or full Board review.
Claimant, a custodial worker, was walking down a school hallway when she heard a pop in her right foot and felt a sharp pain. She was thereafter diagnosed with a fourth and fifth metatarsal fracture and applied for workers' compensation benefits. The self-insured employer and its third-party administrator (hereinafter collectively referred to as the employer) controverted the claim and, following a hearing, a Workers' Compensation Law Judge found that claimant sustained a work-related injury and awarded benefits. Upon review, the Workers' Compensation Board affirmed. The employer's subsequent request for reconsideration and/or full Board review was denied and these appeals ensued.
The employer raises no arguments in its brief regarding the Board's June 2015 denial of reconsideration and/or full Board review and, therefore, we deem the appeal from that decision to be abandoned (see
We affirm. “Whether a compensable accident has occurred presents a question of fact for resolution of the Board and its decision will be upheld when supported by substantial evidence” (Matter of Rolleri v. Mastic Beach Ambulance Co., Inc., 106 A.D.3d 1292, 1292, 967 N.Y.S.2d 139 [2013] [citations omitted], lv. denied 21 N.Y.3d 865, 2013 WL 4792347 [2013] ; see Matter of Worthington v. Samaritan Med. Ctr., 124 A.D.3d 1155, 1155–1156, 2 N.Y.S.3d 290 [2015] ). Moreover, “absent substantial evidence to the contrary, a presumption exists that an accident that occurs in the course of employment arises out of that employment” (Matter of Zobel v. Chemung County, 136 A.D.3d 1140, 1140–1141, 25 N.Y.S.3d 415 [2016], lv. denied 27 N.Y.3d 907, 2016 WL 3084536 [2016] ; see Workers' Compensation Law § 21[1] ).
The Board credited claimant's testimony that she had just finished cleaning the school gymnasium and was walking down a hallway with a coworker when she felt the sharp pain in her foot, giving rise to the statutory presumption (see Matter of Cartwright v. Onondaga News Agency, 283 A.D.2d 837, 837–838, 728 N.Y.S.2d 105 [2001] ). The employer argues that the statutory presumption was rebutted by proof that the injury stemmed not from an accident associated with her job duties, but rather was an idiopathic condition, namely, claimant's congenital metatarsus adductus. In that regard, although her treating physician opined that the fractures “may be partially [due] to her metatarsus adductus ” (emphasis added), the employer's medical expert performed an independent examination on claimant and was unable to draw a direct connection between claimant's condition and the injury. Thus, according deference to the Board's resolution of credibility issues, substantial evidence supports the determination that the injuries arose out of and in the course of claimant's employment (see Matter of Worthington v. Samaritan Med. Ctr., 124 A.D.3d at 1156, 2 N.Y.S.3d 290 ; Matter of Cartwright v. Onondaga News Agency, 283 A.D.2d at 837–838, 728 N.Y.S.2d 105 ).
The employer's remaining contention has been examined and found to be lacking in merit.
ORDERED that the decisions are affirmed, without costs.
GARRY, J.P., EGAN JR., MULVEY and AARONS, JJ., concur.
Matter of Siennikov v. Professional Grade Constr., Inc., 137 A.D.3d 1440, 1441 n. 1, 27 N.Y.S.3d 734 [2016] ).