Matter of Lozowski v. The Wiz , 20 N.Y.S.3d 717 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 3, 2015 518725
________________________________
In the Matter of the Claim of
STANLEY N. LOZOWSKI,
Appellant,
v
THE WIZ,
Respondent,
and MEMORANDUM AND ORDER
ROYAL INSURANCE COMPANY OF
AMERICA, In Care of
ARROWPOINT CAPITAL,
Respondent.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: October 14, 2015
Before: Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.
__________
Stanley N. Lozowski, New Hyde Park, appellant pro se.
Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of
counsel), for Royal Insurance Company of America, respondent.
__________
Lynch, J.
Appeal from a decision of the Workers' Compensation Board,
filed June 7, 2013, which ruled that claimant did not suffer an
accidental injury arising out of and in the course of his
employment and denied his claim for workers' compensation
benefits.
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Claimant worked at a store kiosk selling Internet services
when, in August 1999, he took a leave of absence and, ultimately,
ceased working entirely after complaints he made to his employer
over sales commissions went unresolved. Thereafter, in September
2000, claimant filed for workers' compensation benefits alleging
that the work-related stress from "harassment on [the] job"
caused him to develop anxiety and depression. After a series of
protracted delays, in November 2011, a Workers' Compensation Law
Judge (hereinafter WCLJ) ultimately disallowed the claim finding
that, despite 10 years having passed since commencement of the
case, claimant had failed to provide prima facie evidence with
regard to the employer's alleged misconduct nor did he indicate
how it caused or contributed to his psychological injury. By
decision dated February 2012, however, the Workers' Compensation
Board reversed the decision of the WCLJ and returned the case to
the trial calendar. After a hearing, at which claimant testified
and the deposition testimony of claimant's treating psychologist
and the the workers' compensation carrier's independent medical
examiner were submitted into evidence, a WCLJ once again
disallowed the claim. On appeal, the Board affirmed, finding
that claimant failed to show that the stressors he experienced
were any greater that those experienced by similarly situated
workers in the normal work environment (see Matter of Cerda v New
York Racing Assn., 112 AD3d 1075, 1075-1076 [2013]; Matter of
Young v Pentax Precision Instrument Corp., 57 AD3d 1323, 1324
[2008]. Claimant's request for full Board review and
reconsideration was subsequently denied. Claimant now appeals.
We affirm. It is well settled that mental injuries caused
by work-related stress are compensable if the claimant can
establish that the stress that caused the injury was "greater
than that which other similarly situated workers experienced in
the normal work environment" (Matter of Spencer v Time Warner
Cable, 278 AD2d 622, 623 [2000], lv denied 96 NY2d 706 [2001];
see Workers Compensation Law § 2 [7]; Matter of Guillo v NYC
Hous. Auth., 115 AD3d 1140, 1140 [2014]). In resolving this
factual issue, the Board's determination will not be disturbed so
long as it is supported by substantial evidence (see Matter of
Parrinello v New York City Tr. Auth., 47 AD3d 980, 981 [2008]).
Here, claimant testified that, as a result of his dispute with
the employer over sales commissions, he suffered debilitating
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depression that resulted in his treating psychologist
recommending a leave of absence and, ultimately, his inability to
return to work. Notably, however, claimant had a medical history
of anxiety and depression dating back to 1973. Further, in
September 1998, two months before he started work with the
employer, he sought treatment with the treating psychiatrist to
address depression issues triggered by certain marital stressors.
Although claimant avers that the stress he sustained as a result
of not receiving his sales commissions exacerbated his mental
condition, no evidence was entered into the record other than
claimant's conclusory assertion to the contrary, establishing
that claimant actually performed work or conducted sales for
which the employer failed to provide payment or that the employer
otherwise unlawfully withheld commissions that claimant was
entitled to receive. Accordingly, we find no basis to disturb
the Board's factual determination that claimant's work-related
stress did not exceed that which could be expected in his normal
work environment (see Matter of Witkowich v SUNY Alfred State
Coll., 80 AD3d 1099, 1101 [2011]).
Lahtinen, J.P., McCarthy and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court