                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       520796
________________________________

In the Matter of the Claim of
   MICHAEL SCUDERI,
                    Respondent,
      v

MAZZCO ENTERPRISES et al.,
                    Respondents,            MEMORANDUM AND ORDER
      and

JD CONSULTING LLC et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   March 24, 2016

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

                             __________


      William O'Brien, New York State Insurance Fund, Melville
(Peter J. Lampasona of counsel), for appellants.

      Stewart Greenblatt Manning & Baez, Syosset (Thomas A.
Lumpkin of counsel), for Mazzco Enterprises and another,
respondents.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed July 1, 2014, ruling that apportionment applied to
claimant's workers' compensation award.
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      Claimant was employed as a union carpenter for several
different employers from 1998 through 2009. JD Consulting LLC
employed him in that capacity from 1999 through 2002. In 2010,
claimant filed a workers' compensation claim for bilateral carpal
tunnel syndrome caused by repetitive work. A Workers'
Compensation Law Judge established the claim for an occupational
disease and further ruled that claimant became disabled on June
25, 2010. The workers' compensation carrier for his last
employer, Mazzco Enterprises, sought to apportion liability among
claimant's prior employers pursuant to Workers' Compensation Law
§ 44. The Workers' Compensation Board ultimately found the date
of contraction to be August 14, 1998 and apportioned 45% of the
liability for the claim to JD Consulting and its workers'
compensation carrier. JD Consulting and its carrier now appeal.

      "In determining whether a claim should be apportioned
between previous employers in the same field, the relevant focus
is whether the claimant contracted an occupational disease while
employed by that employer" (Matter of Walton v Lin-Dot, 85 AD3d
1413, 1414 [2011] [internal quotation marks and citations
omitted]; see Workers' Compensation Law § 44; Matter of Polifroni
v Delhi Steel Corp., 46 AD3d 970, 971 [2007]). Claimant
testified that he was not diagnosed with or treated for carpal
tunnel syndrome until 2010, and he did not specify when that
condition began to develop. Claimant complained of soreness in
his hands throughout his time as a union contractor, but stated
that the soreness came and went depending upon his daily work
duties, described it as insignificant and never sought treatment
for it prior to June 2010. Claimant acknowledged, in fact, that
he could not recall when his true symptoms began. His treating
physician did nothing to clarify the situation by recounting that
claimant developed hand pain and numbness "over the last few
years," and he failed to offer an opinion as to when claimant
actually contracted carpal tunnel syndrome.

      A reviewing court will not substitute its judgment for that
of the Board, but it "will insist upon 'such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion'" (Matter of Kopec v Buffalo Brake Beam-Acme Steel &
Malleable Iron Works, 304 NY 65, 71 [1952], quoting Consolidated
Edison Co. v National Labor Relations Bd., 305 US 197, 229
                              -3-                  520796

[1938]; see Matter of Russo v HRT, Inc. of Orange County, 246
AD2d 933, 934 [1998], lv denied 91 NY2d 815 [1998]). Inasmuch as
the limited evidence in the record before us cannot rationally
lead to the date of contraction selected by the Board – and,
indeed, would pose challenges to selecting any specific date of
contraction – its determination is unsupported by substantial
evidence and must be reversed (see Matter of Miranda v Pizza Co.,
27 AD2d 675, 676 [1967]; see also Matter of Good v Town of
Brutus, 111 AD3d 1016, 1017 [2013]; Matter of Walton v Lin-Dot,
85 AD3d at 1414).

      In light of the foregoing, we need not address the
remaining argument of JD Consulting and its carrier.

     McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
