                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      521286
________________________________

In the Matter of the Claim of
   ROBERT KONIAK,
                    Respondent,
      v

SALAMANCA BOARD OF PUBLIC                   MEMORANDUM AND ORDER
   UTILITIES et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   April 26, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.

                             __________


      Hamberger & Weiss, Buffalo (Kristin M. Machelor of
counsel), for appellants.

      Fessenden, Laumer & DeAngelo, Jamestown (Daniel Gullotti of
counsel), for Robert Koniak, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Workers' Compensation Board,
respondent.

                             __________


Mulvey, J.

      Appeal from a decision of the Workers' Compensation Board,
filed October 16, 2014, which ruled that the workers'
compensation carrier is liable for the payment of medical bills
covering treatment that is causally related to claimant's
established workers' compensation claim.
                              -2-                521286

      On December 4, 2006, claimant was involved in an accident
while working as a lineman for the Salamanca Board of Public
Utilities. On that date, he was clearing utility wires following
an automobile accident and was struck in the back of the neck by
a heavy wire that had been cut from a pole by another lineman.
Claimant sustained injuries to his neck, shoulder and lower back,
which also affected his extremities. Although he only missed a
few days of work, he obtained medical treatment for his injuries
through May 2007. He filed a claim for workers' compensation
benefits with regard to this accident and his case was
established for work-related injuries to his neck and back.

      Claimant began working as a lineman for a different public
utility company in 2007. In October 2012, he was performing his
regular job duties and, after throwing a 50-pound pole into his
truck, he experienced numbness and tingling in his left arm and
leg. He received medical treatment through May 2013 and was
diagnosed with various lower back abnormalities. In connection
with such treatment, claimant submitted certain medical bills for
payment as part of his established workers' compensation claim.
The Salamanca Board of Public Utilities and its workers'
compensation carrier (hereinafter collectively referred to as the
carrier) objected on the ground that claimant had sustained a new
injury and the treatment was not causally related to his prior
compensable injury. Following a hearing, a Workers' Compensation
Law Judge found that there was insufficient medical evidence of a
causal relationship and ruled in favor of the carrier. The
Workers' Compensation Board, however, reversed and ruled that the
carrier is liable for payment as it failed to produce sufficient
evidence to deny a causal relationship. The carrier now appeals.

      The Board relied heavily upon the statutory presumption set
forth in Workers' Compensation Law § 21 (5) in making its
decision. That provision states that "the contents of medical
and surgical reports introduced in evidence by claimants for
compensation shall constitute prima facie evidence of fact as to
the matter contained therein" (Workers' Compensation Law § 21
[5]; see Matter of Kigin v State of New York Workers'
Compensation Bd., 24 NY3d 459, 468 [2014]). Once the statutory
presumption has been established, the burden shifts to the
carrier to proffer "'substantial evidence' to contradict the
                              -3-                  521286

content of [the] medical reports" (Matter of Kigin v State of New
York Workers' Compensation Bd., 24 NY3d at 468, quoting Workers'
Compensation Law § 21 [5]).

      Here, the medical reports prepared by the physicians who
submitted bills for treatment list the injury date as December 4,
2006 and make no reference to any other injuries that may have
occurred in October 2012. Two of these physicians stated in
their reports that there was a causal relationship between the
underlying incident and the injuries for which claimant was being
treated. Significantly, one of these physicians, who treated
claimant immediately after the December 4, 2006 accident and
again in 2013, opined that both claimant's complaints and his own
objective findings were consistent with claimant's history of
injury. In view of this, the statutory presumption set forth in
Workers' Compensation Law § 21 (5) is clearly applicable. The
carrier, however, failed to rebut this presumption by submitting
any evidence to contradict these medical reports (see Matter of
Kigin v State of New York Workers' Compensation Bd., 24 NY3d at
468). Therefore, the Board properly found, in keeping with
statutory purpose of requiring employers to bear the cost of
medical care and treatment "for such period as the nature of the
injury or process of recovery may require" (Workers' Compensation
Law § 13 [a]; see Matter of Spyhalsky v Cross Constr., 294 AD2d
23, 25 [2002]), that the carrier is liable for the payment of
claimant's medical bills.

     Peters, P.J., Lahtinen, Egan Jr. and Devine, JJ., concur.


     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
