                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518159
________________________________

In the Matter of the Claim of
   KIM DEMPERIO,
                    Respondent,
      v

ONONDAGA COUNTY et al.,                     MEMORANDUM AND ORDER
                    Appellants,
                    et al.,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   February 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer
Jr., of counsel), for appellants.

      Stephen Lance Cimino, Syracuse, for Kim Demperio,
respondent.

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

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed March 6, 2013, which, among other things, ruled that
claimant sustained a compensable injury.
                              -2-                518159

      Claimant worked as a secretary at a medical facility, and
she filed for workers' compensation benefits alleging that she
sustained work-related mental injuries after she responded to the
suicide of a patient in 2006. Following hearings, a Workers'
Compensation Law Judge established the claim and found, as is
relevant here, that claimant had disabling depression, anxiety
and posttraumatic stress disorder stemming from that incident.
The Workers' Compensation Board affirmed, and the self-insured
employer and its third-party administrator (hereinafter
collectively referred to as the employer) now appeal.

      We affirm. Psychological injuries caused by witnessing the
aftermath of a suicide have been held to be compensable where
"the claimant was an active participant in the tragedy," as
opposed to a bystander (Matter of Wolfe v Sibley, Lindsay & Curr
Co., 36 NY2d 505, 511 [1975]; see Matter of Wood v Laidlaw Tr.,
77 NY2d 79, 83 [1990]; Matter of Everett v A.S. Steel Rule Die
Corp., 106 AD2d 181, 183 [1985], affd for reasons stated below 66
NY2d 683 [1985]). The facts here are not in significant dispute.
On March 31, 2006, a patient leapt from a window at the facility
where claimant worked and impaled himself on picnic tables
outside of claimant's office. Claimant was one of the first
workers to reach the scene and, despite her lack of medical
training, was directed by her supervisor to retrieve an oxygen
tank for the patient. Claimant did so, but began to feel anxious
and hyperventilate and "lost it" altogether after she was ordered
by facility officials not to speak to investigators about her
prior interactions with the patient. Therefore, substantial
evidence exists for the Board's finding that claimant was indeed
an active participant in the events surrounding the suicide
(see Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d at
510-511; see also Matter of Wood v Laidlaw Tr., 77 NY2d at 84;
Matter of Wyman v Maidas Floral Shop, 1 AD3d 728, 729 [2003]).
The Board was further free to, and did, credit medical evidence
indicating that claimant developed disabling depression, anxiety
and posttraumatic stress disorder as a result of the incident
(see Matter of Malerba v Ameron Global, Inc., 117 AD3d 1302, 1303
[2014]).

      We have examined the employer's remaining contention and
found it to be lacking in merit.
                        -3-                  518159

Lahtinen, J.P., Garry and Lynch, JJ., concur.



ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
