                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   522903
________________________________

In the Matter of the Claim of
   JAMES CIULLO,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
GORDON L. SEAMAN INC. et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 14, 2016

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

                             __________


     John F. Clennan, Ronkonkoma, for appellant.

      Lawrence J. Komsky, Hewlett, for Gordon L. Seaman Inc. and
another, respondents.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed July 3, 2015, which ruled that claimant's injury did not
arise out of and in the course of his employment and denied his
claim for workers' compensation benefits.

      On August 22, 2013, claimant purportedly fell from a ladder
while working and landed on his feet. He stated that he told his
wife that his back was bothering him due to the fall, but he did
not file an incident report with his employer. According to
claimant, this exacerbated his prior back condition and he
collapsed at home. He went to the emergency room and was later
                              -2-                522903

released, but proceeded to go to a job site the next day to
deliver blueprints and other materials. The condition eventually
required several surgeries and other medical treatment.

      On October 15, 2013, claimant filed a claim for workers'
compensation benefits. The employer, through its workers'
compensation carrier, controverted the claim on the ground that
claimant's back injury did not arise out of and in the course of
his employment. Following a number of hearings, a Workers'
Compensation Law Judge sustained the employer's objection and
disallowed the claim. The Workers' Compensation Board affirmed
this decision and claimant now appeals.

      Initially, it is well settled that, in order for an injury
to be compensable, it must arise out of and in the course of
employment (see Workers' Compensation Law § 10 [1]; Matter of
Maher v NYS Div. of Budget, 72 AD3d 1380, 1381 [2010]). This is
a factual issue for the Board to decide, and its determination in
this regard will be upheld if supported by substantial evidence
(see Matter of Nichols v Hale Cr. ASACTC, 91 AD3d 1010, 1011
[2012]; Matter of Siliverdis v Sea Breeze Servs. Corp., 82 AD3d
1459, 1460 [2011]).

      Here, the history recorded in the medical notes taken
during claimant's initial visit to the emergency room indicated
that his injury was the result of a fall at home. Notably, Brian
Morelli, the orthopedic surgeon who performed claimant's
emergency laminectomy and treated him thereafter, did not link
claimant's back condition to a fall at work until March 2014, and
acknowledged that he had earlier represented on a disability
benefits form that the condition was not work related. Claimant
and his wife testified at the hearing that they informed the
employer's project manager soon after claimant was injured that
he fell from a ladder at work, but the project manager denied
that he was informed of the manner in which claimant injured his
back. The manager further stated that, while claimant was in the
hospital, he left a voice message inquiring about obtaining
workers' compensation benefits and asked the manager "if there
was any way that [he] could ma[ke] that happen." The manager
responded by telling claimant's wife to file an incident report,
which did not occur. No testimony was presented at the hearing
                              -3-                522903

from witnesses who actually observed claimant fall from the
ladder and could substantiate his version of events.1

      In view of the foregoing, it is clear that resolution of
the issue at hand turns upon a credibility determination made by
the Board, to which we accord considerable deference (see Matter
of Siliverdis v Sea Breeze Servs. Corp., 82 AD3d at 1460; Matter
of Enriquez v Home Lawn Care & Landscaping, Inc., 77 AD3d 1149,
1151 [2010]). Moreover, although claimant places much emphasis
on the presumption of compensability set forth in Workers'
Compensation Law § 21, this does not relieve him of the burden of
establishing that his injury arose out of and in course of his
employment (see Matter of Huggins v Masterclass Masonry, 83 AD3d
1345, 1347 [2011]; Matter of Bond v Suffolk Transp. Serv., 68
AD3d 1341, 1342 [2009]). Given that the record contains
substantial evidence to support the Board's finding that
claimant's back injury did not arise out of and in the course of
his employment, we find no reason to disturb its decision.

     McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.




     1
         The testimony of a coworker who allegedly observed the
fall was apparently unavailable as he had ceased working for the
employer. Although claimant later located this individual and
submitted his affidavit for the Board to consider, claimant
failed to comply with the regulations governing the disclosure of
witnesses (see 12 NYCRR 300.38 [g] [7]) or request an adjournment
of the hearing to present his testimony. Therefore, the Board
did not err in failing to consider the affidavit.
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ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
