                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   March 17, 2016                  520744
                                                       521883
________________________________

In the Matter of the Claim of
   SERGII SIENNIKOV,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
PROFESSIONAL GRADE CONSTRUCTION,
   INC., et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 11, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Harris Law Group, LLP, Rego Park (Mark Muccigrosso of
Talkin, Muccigrosso & Roberts, LLP, New York City, of counsel),
for appellant.

      Vecchione, Vecchione & Connors, LLP, Garden City Park
(Leslie Wong of counsel), for Professional Grade Construction,
Inc. and another, respondents.

                             __________


Egan Jr., J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed July 2, 2014, which ruled that claimant did not
suffer a compensable injury and denied his claim for workers'
compensation benefits, and (2) from a decision of said Board,
filed July 31, 2015, which denied claimant's request for
reconsideration and/or full Board review.
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                                                 521883

      Claimant, a construction helper, applied for workers'
compensation benefits in November 2012, alleging that he had
injured his left hip, back and head in a fall from scaffolding
onto a concrete floor on a construction site at approximately
11:30 a.m. on February 23, 2012. At a hearing, conflicting
testimony was offered by claimant, a coworker and the company
owner and foreperson, medical records were submitted and the
deposition testimony of claimant's treating physicians and the
workers' compensation carrier's consulting orthopedic surgeon
were introduced. A Workers' Compensation Law Judge (hereinafter
WCLJ) concluded that the employer had not rebutted the
presumption under Workers' Compensation Law § 21 and found that
claimant had sustained a work-related injury to his back and left
hip and established the claim. The employer and its carrier
sought review by the Workers' Compensation Board, contending that
the WCLJ's findings regarding notice, accident and causal
relationship, among others, were unsupported by the credible
evidence. By decision filed July 2, 2014, the Board agreed,
after undertaking a complete review of the record, and reversed,
finding, among other things, that there was insufficient credible
evidence to show that claimant suffered an injury in the course
of his employment on February 23, 2012. Claimant's application
for reconsideration and/or full Board review was denied by Board
decision filed July 31, 2015. Claimant now appeals from both
decisions.1

      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 Losardo v Baxter Healthcare Corp., 126 AD3d 1164, 1165
[2015] [internal quotation marks and citations omitted]).
Claimant testified that following this unwitnessed fall, he
promptly reported the accident to a superior and left work


    1
        Claimant raises no arguments in his appellate brief
regarding the denial of his request for reconsideration and/or
full Board review and, accordingly, we deem his appeal from that
decision to be abandoned (see Matter of Krietsch v Northport-East
Northport UFSD, 116 AD3d 1255, 1256 n 2 [2014]).
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                                                  521883

shortly thereafter without summoning an ambulance, was absent
from work the following day – a Friday – and returned to work the
following Monday; he continued to work, including performing
heavy lifting, until April 25, 2012, when he stopped working due
to pain. A coworker testified that he heard a crash and
thereafter saw claimant on the floor in pain, that claimant
reported the fall to the supervisor, who refused to help claimant
obtain medical treatment, and that claimant left work early.
Claimant admittedly did not seek any medical treatment until
March 20, 2012 and, after X rays were taken, the physician told
him that there was "nothing wrong" and he could "continue to
work." While he claimed that he had told the physician that he
had fallen at work, no such medical records were produced.
Claimant next sought medical treatment for a backache in June
2012 at an emergency room and then from his family physician,
attributing his back pain to heavy lifting within the previous
month; he was diagnosed with degenerative changes to his hip, but
the records do not reflect that he reported a work-related fall.2
Claimant first reported a workplace fall to a physical medicine
physician in November 2012, nine months after the accident, the
same day that he filed a claim for workers' compensation
benefits; while he told that physician that he had sought
treatment at an emergency room the day of the fall, no such
records were ever produced, and claimant himself conceded at the
hearing that he had not sought any medical treatment until almost
two months after the alleged fall.

      By contrast, the employer's witnesses testified that they
never received notice of the accident, that timecard and payroll
records reflect that claimant worked and was paid for his full
shift on the day in question and that he lost no time and
continued to work until April 25, 2012, when he stopped reporting
and took a position with another construction company. Based
upon the testimony and records of the employer's witnesses, which
contradicted claimant's proof, and the lack of documentary


     2
        Although claimant's treatment records contain a reference
to a fall or jump "from a height some time ago," there is no
indication of a date or that the fall occurred at work.
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                                                 521883

evidence or any contemporaneous medical records reflecting that
claimant sustained the described work-related injury, the Board
found that the testimony of claimant and his coworker was not
credible. The Board further determined that the medical
testimony of a causally-related injury, first reported nine
months after the alleged incident, was based solely upon the
history provided by claimant, which the Board found was "unworthy
of belief." Given the foregoing evidence and according deference
to the Board as "the sole arbiter of witness credibility" (Matter
of Dixon v Almar Plumbing, 111 AD3d 1230, 1231 [2013] [internal
quotation marks and citations omitted]), the Board was entitled
to reject claimant's testimony and proof, draw reasonable
inferences from the conflicting evidence and conclude that no
work-related accident had occurred, a finding supported by
substantial evidence (see Matter of Losardo v Baxter Healthcare
Corp., 126 AD3d at 1165).

      Finally, contrary to the analysis of the WCLJ, Workers'
Compensation Law § 21, "which affords a presumption that an
unwitnessed or unexplained workplace accident arose out of the
injured person's employment, . . . cannot be utilized to
demonstrate that an accident occurred in the first place" (Matter
of Dixon v Almar Plumbing, 111 AD3d at 1231 n 1 [internal
quotation marks and citation omitted]). Claimant's remaining
arguments have been examined and determined to lack merit.

     Garry, J.P., Lynch, Devine and Clark, JJ., concur.
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                                             521883

ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
