                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     521607
________________________________

In the Matter of the Claim of
   DOUGLAS HYATT,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
HOLLISWOOD CARE CENTER et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   June 3, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

                             __________


      Malapero & Prisco, LLP, New York City (David H. Allweiss of
counsel), for appellants.

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

                             __________


Peters, P.J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 31, 2014, which ruled that claimant sustained a
work-related injury and awarded him workers' compensation
benefits.

      Claimant sustained an injury to his neck and back while
performing his duties as a utility person and housekeeper for the
employer. According to claimant, he was injured while trying to
hold and prevent a heavy bin of wet and soiled linen from falling
                              -2-                521607

on his supervisor. Claimant subsequently applied for workers'
compensation benefits. The employer and its workers'
compensation carrier controverted the claim and, following a
hearing, a Workers' Compensation Law Judge found that claimant
sustained a work-related injury and awarded benefits. The
Workers' Compensation Board affirmed that decision. This appeal
ensued.

      We affirm. "'Whether a compensable accident has occurred
is a question of fact to be resolved by the Board and its
determination will not be disturbed when supported by substantial
evidence'" (Matter of Worthington v Samaritan Med. Ctr., 124 AD3d
1155, 1155-1156 [2015], quoting Matter of Cicciarelli v
Westchester Health Care Corp., 86 AD3d 733, 734 [2011] [citations
omitted]). Absent substantial evidence to the contrary, a
presumption exists that an accident that occurs in the course of
employment arises out of that employment (see Workers'
Compensation Law § 21 [1]; Matter of Enriquez v Home Lawn Care &
Landscaping, Inc., 77 AD3d 1149, 1151 [2010]; Matter of Lopez v
City Univ. of N.Y., 299 AD2d 645, 646 [2002]).

      Claimant testified that, on October 2, 2012, he was injured
while lifting wet clothes and linens into bins when he grabbed a
heavy bin to prevent it from tipping over onto his supervisor and
it pulled him over, causing him to feel pain in his neck, back
and hands. Claimant's primary care physician testified that he
saw claimant on October 22, 2012 and, at that time, claimant
mentioned that he had injured himself at work on October 2, 2012.
That physician testified that, in March 2013, claimant described
the accident involving the bin, reporting that it had occurred on
October 2, 2012, and explained that he had been instructed by his
employer to file a disability claim rather than a workers'
compensation claim. The primary care physician further testified
that an MRI performed on October 5, 2012, which had been ordered
prior to claimant's accident due to preexisting back pain,
indicated that claimant had suffered a herniated lumbar disc and
lumbar disc bulge, and the primary care physician opined that
claimant's back condition was caused by his job and limited his
ability to work. Claimant's orthopedic surgeon testified that an
MRI indicated lumbar and cervical disc derangements and opined
that such injuries were related to the October 2, 2012 incident
                              -3-                521607

and resulted in a moderate to severe disability. Consistent with
the testimony of claimant's other two physicians, claimant's
neurologist testified that subsequent MRI results showed that
claimant had suffered herniated cervical and lumbar discs, which
the neurologist attributed to claimant's reported October 2, 2012
accident.

      Although claimant had previously seen his primary care
physician for back pain and there is some discrepancy as to the
date of the accident, the Workers' Compensation Law Judge
credited claimant's testimony that the accident occurred on
October 2, 2012, and the Board panel declined to disturb that
assessment. The date of October 2, 2012 is consistent with the
C-3 form that claimant ultimately filed and each of his
physicians' recollections of claimant's self-reported date of the
accident. Thus, according deference to the Board's resolution of
witness credibility issues, we find that substantial evidence
supports the Board's determination that claimant's injuries arose
out of and in the course of his employment, and its decision will
not be disturbed (see Workers' Compensation Law § 21 [1]; Matter
of Hopkins v Emcor Group, Inc., 130 AD3d 1114, 1115 [2015];
Matter of Worthington v Samaritan Med. Ctr., 124 AD3d at 1156;
Matter of Scalzo v St. Joseph's Hosp., 297 AD2d 883, 884 [2002]).


     Lahtinen, Egan Jr., Rose and Clark, JJ., concur.
                        -4-                  521607

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
