                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 28, 2016                   520578
________________________________

In the Matter of the Claim of
   SANDRA HAYNES,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
CATHOLIC CHARITIES et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 15, 2015

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

                             __________


      Wolff Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer
Jr. of counsel), for appellants.

      Law Office of K. Felicia Davis, Syracuse (K. Felicia Davis
of counsel), for Sandra Haynes, respondent.

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

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed May 7, 2014, which ruled that claimant sustained a
compensable injury.

      Claimant, who worked as a caseworker, applied for workers'
compensation benefits in October 2012, alleging that she suffered
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a psychological injury as the result of being assaulted by a
client. Following hearings, a Workers' Compensation Law Judge
established the claim, and the Workers' Compensation Board
affirmed. The employer and its workers' compensation carrier now
appeal, arguing that the claim is barred by Workers' Compensation
Law § 2 (7).

      We affirm. Workers' Compensation Law § 2 (7) precludes
claims for mental injuries based upon work-related stress "if
such mental injury is a direct consequence of a lawful personnel
decision involving a disciplinary action, work evaluation, job
transfer, demotion, or termination taken in good faith by the
employer." "Whether the employer's actions constituted a lawful
personnel decision undertaken in good faith is a factual issue to
be resolved by the Board" (Matter of Miles v State Ins. Fund, 267
AD2d 511, 512 [1999] [citation omitted]; accord Matter of Aubel v
Price Chopper, 307 AD2d 691, 691 [2003]). The employer and
carrier contend that claimant's condition was the consequence of
two warning letters that were issued in good faith to claimant
and, therefore, her condition is not compensable pursuant to
Workers' Compensation Law § 2 (7). In April 2012, claimant was
given a warning letter for failing to follow the employer's
protocol in handling a situation involving a runaway child and
for several incidents in which claimant had communicated
inappropriately with coworkers or clients. Claimant was issued
another warning letter in July 2012, based upon a report received
by the employer that she had been rude to an employee at a
homeless shelter. According to both claimant's supervisor and
the employer's human resources representative, however, the
warning letter was issued without the employer ever contacting
the complaining employee or receiving a written complaint.
Claimant denied the allegation and refused to sign the letter.
Although the Board found that the April 2012 discipline was, at
least in part, a lawful personnel decision, it concluded that the
employer had not established that the July 2012 discipline was
undertaken in good faith.

      The employer's claims regarding the cause of claimant's
condition were countered by the testimony of David Blair, a
licensed clinical social worker, who testified that he had
diagnosed claimant as suffering from recurrent posttraumatic
                              -3-                520578

stress disorder stemming from work-related stress as early as
February 2012, which was prior to the issuance of the warning
letters. Claimant testified that she was unable to work due to
the stress that resulted from being punched by a client in the
stomach in July 2012, which resulted in her being paranoid around
clients and caused certain physical symptoms, including
sleeplessness. The Board also credited the testimony of claimant
and her witness that they overheard claimant's supervisor, the
employer's human resources director and an associate director all
make disparaging remarks about claimant to each other, including
that she was faking her mental condition, at a meeting that
claimant was asked to attend in August 2012. "According
deference to the Board's resolution of witness credibility
issues" (Matter of Hopkins v Emcor Group, Inc., 130 AD3d 1114,
1115 [2015]), and in light of the evidence that claimant suffers
from a mental injury stemming from work-related stress and that
she was being treated for the condition prior to the issuance of
the warning letters, the Board's determination that the claim was
not barred by Workers' Compensation Law § 2 (7) is supported by
substantial evidence and will not be disturbed (see Matter of
Potter v Curtis Lbr. Co., Inc., 10 AD3d 819, 820 [2004]; Matter
of DePaoli v Great A & P Tea Co., 257 AD2d 912, 912 [1999], affd
94 NY2d 377 [2000]). Further, based upon the foregoing, we find
that the Board's determination that the stress that caused
claimant's injury was greater than that of other similarly
situated workers also is supported by substantial evidence (see
Matter of Brittain v New York State Ins. Dept., 107 AD3d 1340,
1341-1342 [2013]).

     McCarthy, J.P., Lynch and Clark, JJ., concur.
                        -4-                  520578

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
