                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   518426
________________________________

In the Matter of the Claim of
   DONALD ANDERSON,
                    Appellant,
      v

NEW YORK CITY DEPARTMENT OF                 MEMORANDUM AND ORDER
   DESIGN & CONSTRUCTION,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 5, 2014

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

                             __________


     Geoffrey Schotter, New York City, for appellant.

      Meghan McKenna, City of New York Law Department, New York
City, for New York City Department of Design & Construction,
respondent.

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 25, 2013, which ruled that claimant did not sustain a
further causally related injury.

      Claimant was involved in a work-related automobile accident
in 2002, and he sought workers' compensation benefits for
injuries to his head, neck and right shoulder. The claim was
established for injuries to the neck and back later that year,
with claimant directed "to submit medical evidence for all
                              -2-                518426

additional sites claimed." The Workers' Compensation Board found
that claimant had no continuing disability in 2005, crediting
medical evidence that he had been magnifying his symptoms and
that objective testing did not support his claims of continuing
disability. He was thereafter diagnosed as suffering from a
partial right rotator cuff tear in 2009 and, alleging that the
tear was related to the 2002 accident, claimant sought to include
it under his workers' compensation claim. The Board ultimately
rejected that application, finding that claimant had not
established a causal link between the 2002 accident and the tear.
Claimant now appeals.

      We affirm. Claimant was obliged to establish a causal
relationship between the 2002 accident and his right rotator cuff
tear (see Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014,
1014 [2014]; Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998,
998 [2013]). Claimant reported suffering from right shoulder
pain after the 2002 accident, but that pain was diagnosed as
stemming from a sprain or strain and was categorized by one
examining doctor as subjective. Notwithstanding the lack of
contemporaneous evidence to demonstrate that claimant had torn
his rotator cuff in the 2002 accident, claimant's present
orthopedist opined, after reviewing an MRI taken in 2009, that he
had, in fact, sustained the injury in the accident. The
orthopedist also admitted, however, that age-related rotator cuff
degeneration occurred even without any traumatic injury. The
Board found that the orthopedist had not "testif[ied]
convincingly in support of a causal relationship" given these
facts and, inasmuch as claimant submitted no other proof to link
the rotator cuff tear to the accident, the Board's decision is
supported by substantial evidence in the record (Matter of
Satalino v Dan's Supreme Supermarket, 91 AD3d 1019, 1020 [2012];
see Matter of Dizenzo v Henderson & Johnson, 114 AD3d at 1014;
Matter of Jaquin v Community Covenant Church, 69 AD3d 998, 1000
[2010]).

     Stein, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.
                        -3-                  518426

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
