                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   523085
________________________________

In the Matter of the Claim of
   WILLIAM QUALLS,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

BRONX DISTRICT ATTORNEY'S
   OFFICE et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   November 22, 2016

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

                             __________


     John F. Clennan, Ronkonkoma, for appellant.

      Zachary W. Carter, Corporation Counsel, New York City (Levi
Grosswald of counsel), for Bronx District Attorney's Office and
another, respondents.

                             __________


Egan Jr., J.

      Appeals (1) from a decision of the Workers' Compensation
Board, filed September 9, 2015, which ruled that claimant did not
sustain a causally related disability and denied his claim for
workers' compensation benefits, and (2) from a decision of said
Board, filed December 21, 2015, which denied claimant's
application for reconsideration and/or full Board review.

      On the evening of November 3, 2012, claimant, an
investigator with the Bronx District Attorney's Office, suffered
                              -2-                523085

an ischemic stroke at his residence and thereafter filed a claim
for workers' compensation benefits. Following a hearing, a
Workers' Compensation Law Judge found that claimant's stroke was
causally related to his employment and awarded benefits. Upon
review, however, the Worker's Compensation Board reversed,
finding that there was insufficient medical evidence to establish
the requisite causal relationship between claimant's employment
and his disability. Claimant's subsequent application for
reconsideration and/or full Board review was denied, and these
appeals ensued.1

      We affirm. As the party seeking benefits, claimant bore
the burden of establishing – by competent medical evidence – a
causal connection between his employment and the claimed
disability (see Matter of Poverelli v Nabisco/Kraft Co., 123 AD3d
1309, 1310 [2014]; Matter of Bailey v Ben Ciccone, Inc., 104 AD3d
1017, 1017 [2013]). In this regard, "[w]hile the Board cannot
rely upon expert opinion evidence that amounts to nothing more
than pure speculation, the Workers' Compensation Law does not
require that medical opinions be expressed with absolute or
reasonable medical certainty" (Matter of Estate of Harris v
General Elec. Co., 115 AD3d 1133, 1134 [2014] [internal quotation
marks, ellipsis and citations omitted]). Rather, "[a]ll that is
required is that it be reasonably apparent that the expert meant
to signify a probability as to the cause and that his or her
opinion be supported by a rational basis" (id. at 1134 [internal
quotation marks, brackets and citations omitted]; see Matter of
Norton v North Syracuse Cent. School Dist., 59 AD3d 890, 891
[2009]). Applying that standard to the evidence adduced at the
hearing, the Board found claimant's medical proof to be lacking –
a finding that is, in turn, supported by the record before us.

      Claimant testified that the stress caused by his assignment
to protect a key witness in a murder trial resulted in his


    1
        Inasmuch as claimant did not raise any arguments in his
brief regarding the Board's denial of his application for
reconsideration and/or full Board review, we deem his appeal from
that decision to be abandoned (see Matter of Krietsch v
Northport-East Northport UFSD, 116 AD3d 1255, 1256 n 2 [2014]).
                                 -3-                523085

stroke, and his treating physician opined – in his written report
– that such work-related stress was "likely to be a contributory
factor to [claimant's] ischemic stroke."2 Although claimant's
physician reiterated that opinion during the course of his
deposition, again stating that such stress was "likely to be a
contributory factor" with respect to claimant's stroke, the
physician also variously testified that work-related stress "may
have been" or "could've been a contributory factor." In this
regard, claimant's physician again acknowledged that claimant had
"other multiple risk factors for ischemic stroke" – with
hypertension being "the major risk factor" – leading claimant's
physician to conclude that work-related stress "most likely was
not the only factor" underlying claimant's stroke. Indeed,
claimant's physician confirmed that, even "outside of the stress
that he was facing at work," claimant "[a]bsolutely" would "still
be at risk for the same kind of stroke." Finally, claimant's
physician conceded that, while the claimed stress "certainly may
have been a contributory factor, . . . there's absolutely no way
to tell if [claimant] would have had [the stroke] without the
stress" as "[t]here's no objective way of testing it."

      Given claimant's multiple and independent risk factors for
a stroke, as well as his physician's equivocal testimony as to
the role that stress "may" or "could" have played in contributing
to claimant's disability, the Board was free to characterize –
and ultimately reject – the medical evidence offered by claimant
as speculative (see Matter of Bradley v US Airways, Inc., 58 AD3d
1043, 1044-1045 [2009]). Absent sufficient medical evidence to
establish a causal relationship between claimant's employment and
his disability, the Board's decision must be affirmed.

         Garry, J.P., Rose, Clark and Mulvey, JJ., concur.



     2
        The physician's written report also noted, however, that
claimant had "a number of risk factors for ischemic stroke,"
including diabetes, hypertension and hyperlipidemia, and the
physician acknowledged during his deposition testimony that
claimant "was on multiple medications" to treat his documented
diabetes, high blood pressure and high cholesterol.
                        -4-                  523085

ORDERED that the decisions are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
