                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 17, 2016                    522424
________________________________

In the Matter of the Claim of
   LYNNE CUVA,
                    Appellant,
      v

STATE INSURANCE FUND et al.,                 MEMORANDUM AND ORDER
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    October 19, 2016

Before:    Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                              __________


      Law Firm of Alex C. Dell, PLLC, Albany (Mindy E. McDermott
of counsel), for appellant.

      Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of
counsel) and William O'Brien, State Insurance Fund, Albany, for
State Insurance Fund and another, respondents.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed March 27, 2015, which, among other things, ruled that
claimant did not suffer an accidental injury arising out of and
in the course of her employment and denied her claim for workers'
compensation benefits.

      Claimant, a long-term employee of the Workers' Compensation
Board, was working in a supervisory position as a program manager
on March 7, 2013 when an incident occurred during a work-related
                              -2-                522424

discussion between claimant and one of her subordinates, an
examiner. Claimant filed a workplace violence report, which was
later determined to be unfounded by the Director of Human
Resources. At the time, claimant's bureau, which was operating
under a significant backlog and had experienced a high turnover
rate, was being evaluated and reorganized, and claimant was
reassigned to a new unit in April 2013. After the incident,
claimant, who had a history of treatment for non-work-related
anxiety, depression and posttraumatic stress disorder
(hereinafter PTSD), reportedly experienced increased symptoms of
anxiety and depression, as well as panic attacks, insomnia and
difficulty concentrating for which she sought treatment from her
internal medicine physician.

      In January 2014, after claimant was again reassigned, she
filed a claim for workers' compensation benefits alleging that
she had felt threatened during the March 2013 encounter and that
it had caused her stress, panic attacks and digestive problems.
Claimant stopped working in June 2014 on the advice of her
physician, who concluded that she was completely disabled due to
her ongoing mental health problems, and she filed another claim
in July 2014 alleging that the incident had also caused PTSD.
She attributed her symptoms to being "threatened" by her coworker
and harassed for filing a workplace violence report and required
by the employer to undergo a psychological exam in June 2013.

      After a series of hearings and the submission of claimant's
medical records and the reports and deposition testimony of her
treating physician, as well as an independent medical exam by the
workers' compensation carrier's consultant, a Workers'
Compensation Law Judge (hereinafter WCLJ) issued an amended
decision disallowing the claim on the grounds, among others, that
claimant did not experience work-related stress greater than what
is experienced in a normal work environment, and that the
exacerbation of her mental health symptoms did not arise out of
and in the course of the March 7, 2013 incident or its aftermath.
The WCLJ also found that her claim of workplace violence was
unsubstantiated. The Workers' Compensation Board affirmed, and
claimant now appeals.
                              -3-                522424

      We affirm. It is well established that "mental injuries
caused by work-related stress are compensable if the claimant can
establish that the stress that caused the injury was greater than
that which other similarly situated workers experienced in the
normal work environment" (Matter of Lozowski v Wiz, 134 AD3d
1177, 1178 [2015] [internal quotation marks and citation
omitted]; see Workers' Compensation Law § 2 [7]; Matter of Guillo
v NYC Hous. Auth., 115 AD3d 1140, 1140 [2014]; Matter of
Witkowitch v SUNY Alfred State Coll., 80 AD3d 1099, 1100 [2011]).
In resolving that factual question, the Board's determination
will not be disturbed provided that it is supported by
substantial evidence (see Matter of Lozowski v Wiz, 134 AD3d at
1178).

      While the medical evidence concluded, based upon claimant's
self reporting, that the March 7, 2013 incident caused or
exacerbated her mental health problems, substantial evidence
supports the Board's factual determination that the incident was
not compensable on the ground that the work-related stress
suffered by claimant that led to her anxiety, PTSD and depression
was not "greater than that which other similarly situated workers
experienced in the normal work environment" (Matter of Lozowski v
Wiz, 134 AD3d at 1178 [internal quotation marks and citation
omitted]). Regarding the incident, claimant testified that she
was standing outside the examiner's cubicle discussing a work
issue when he became angry, grabbed the arms of his chair and
began "shaking," gritting his teeth and "seething," making a
hissing sound. However, he remained seated, facing his computer
and did not make verbal or physical threats or raise his voice.
While claimant testified that the examiner swore at her during
the encounter, the WCLJ credited a coworker who testified that
she had overheard "a work interaction" in which claimant and the
examiner "disagreed" and that she had informed claimant, after
the incident, that the examiner used profanity after claimant
walked away from the disagreement. The WCLJ also discredited
claimant's account of the incident and her claim that this brief
episode left her terrified, based upon her testimonial demeanor
as well as her inconsistent accounts and actions after the
incident, including claimant's return to the examiner's work area
shortly after the incident to speak with a coworker; her treating
physician's testimony that she had inconsistently reported that
                              -4-                522424

the examiner had made knifelike gestures at her; her testimony
and emails establishing that, the day after the incident, she had
a meeting with the examiner and later reported that the matter
was "settled" and that they were "moving forward with a good
working relationship"; and her reassignment to another unit in
April 2013 where she did not work with or supervise the examiner.

      Deferring to the Board's credibility determinations (see
Matter of Hill v Shoprite Supermarkets, Inc., 140 AD3d 1564, 1565
[2016]), we find that the record as a whole supports its
conclusion that this was, at most, "an isolated incident of
insubordination" to which the employer appropriately responded,
which was not so improper or extraordinary as to give rise to a
viable claim for a work-related injury. Accordingly, we find no
basis to disturb the Board's determination that claimant's
work-related stress did not exceed that which could be expected
by a supervisor in a normal work environment (see Matter of
Lozowski v Wiz, 134 AD3d at 1178; Matter of Guillo v NYC Hous.
Auth., 115 AD3d at 1141).

      Finally, we are unpersuaded by claimant's contention that
the unannounced presence at the hearing of the supervising WCLJ
(the presiding WCLJ's supervisor) or claimant's employment by the
Board gave rise to an appearance of impropriety or conflict of
interest requiring recusal of the presiding WCLJ.1 While the
supervising WCLJ acknowledged, when asked, that it was not normal
practice to observe hearings, there was nothing inappropriate in
the supervisory observation, and claimant failed to identify any
basis for the presiding WCLJ's mandatory or discretionary recusal
(see Judiciary Law § 14; see also 22 NYCRR 100.2; People v
Alteri, 47 AD3d 1070, 1070-1071 [2008]). Moreover, a review of
the record discloses no indication of partiality, appearance of
impropriety or unfairness in the conduct of the hearings or the


     1
         Claimant's request that her claim be adjudicated by an
outside arbiter pursuant to Workers' Compensation Law § 20 (2)
was denied in writing on the ground that her title as a Principal
Workers' Compensation Examiner did not qualify her for this
Employee Claim Resolution Program. Claimant does not make any
argument on appeal that this determination was incorrect.
                              -5-                  522424

determination of noncompensability. Claimant's remaining
contentions have been reviewed and, to the extent that they are
preserved, have been determined to lack merit.

     Peters, P.J., Garry, Egan Jr. and Mulvey, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
