Matter of Cuva v. State Insurance Fund ( 2016 )


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  •                            State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: November 17, 2016                    522424
    ________________________________
    In the Matter of the Claim of
    LYNNE CUVA,
    Appellant,
    v
    STATE INSURANCE FUND et al.,                 MEMORANDUM AND ORDER
    Respondents.
    WORKERS' COMPENSATION BOARD,
    Respondent.
    ________________________________
    Calendar Date:    October 19, 2016
    Before:    Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.
    __________
    Law Firm of Alex C. Dell, PLLC, Albany (Mindy E. McDermott
    of counsel), for appellant.
    Stockton, Barker & Mead, LLP, Troy (Matthew R. Mead of
    counsel) and William O'Brien, State Insurance Fund, Albany, for
    State Insurance Fund and another, respondents.
    __________
    Rose, J.
    Appeal from a decision of the Workers' Compensation Board,
    filed March 27, 2015, which, among other things, ruled that
    claimant did not suffer an accidental injury arising out of and
    in the course of her employment and denied her claim for workers'
    compensation benefits.
    Claimant, a long-term employee of the Workers' Compensation
    Board, was working in a supervisory position as a program manager
    on March 7, 2013 when an incident occurred during a work-related
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    discussion between claimant and one of her subordinates, an
    examiner. Claimant filed a workplace violence report, which was
    later determined to be unfounded by the Director of Human
    Resources. At the time, claimant's bureau, which was operating
    under a significant backlog and had experienced a high turnover
    rate, was being evaluated and reorganized, and claimant was
    reassigned to a new unit in April 2013. After the incident,
    claimant, who had a history of treatment for non-work-related
    anxiety, depression and posttraumatic stress disorder
    (hereinafter PTSD), reportedly experienced increased symptoms of
    anxiety and depression, as well as panic attacks, insomnia and
    difficulty concentrating for which she sought treatment from her
    internal medicine physician.
    In January 2014, after claimant was again reassigned, she
    filed a claim for workers' compensation benefits alleging that
    she had felt threatened during the March 2013 encounter and that
    it had caused her stress, panic attacks and digestive problems.
    Claimant stopped working in June 2014 on the advice of her
    physician, who concluded that she was completely disabled due to
    her ongoing mental health problems, and she filed another claim
    in July 2014 alleging that the incident had also caused PTSD.
    She attributed her symptoms to being "threatened" by her coworker
    and harassed for filing a workplace violence report and required
    by the employer to undergo a psychological exam in June 2013.
    After a series of hearings and the submission of claimant's
    medical records and the reports and deposition testimony of her
    treating physician, as well as an independent medical exam by the
    workers' compensation carrier's consultant, a Workers'
    Compensation Law Judge (hereinafter WCLJ) issued an amended
    decision disallowing the claim on the grounds, among others, that
    claimant did not experience work-related stress greater than what
    is experienced in a normal work environment, and that the
    exacerbation of her mental health symptoms did not arise out of
    and in the course of the March 7, 2013 incident or its aftermath.
    The WCLJ also found that her claim of workplace violence was
    unsubstantiated. The Workers' Compensation Board affirmed, and
    claimant now appeals.
    -3-                522424
    We affirm. It is well established 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 Lozowski v Wiz, 134 AD3d
    1177, 1178 [2015] [internal quotation marks and citation
    omitted]; see Workers' Compensation Law § 2 [7]; Matter of Guillo
    v NYC Hous. Auth., 115 AD3d 1140, 1140 [2014]; Matter of
    Witkowitch v SUNY Alfred State Coll., 80 AD3d 1099, 1100 [2011]).
    In resolving that factual question, the Board's determination
    will not be disturbed provided that it is supported by
    substantial evidence (see Matter of Lozowski v Wiz, 134 AD3d at
    1178).
    While the medical evidence concluded, based upon claimant's
    self reporting, that the March 7, 2013 incident caused or
    exacerbated her mental health problems, substantial evidence
    supports the Board's factual determination that the incident was
    not compensable on the ground that the work-related stress
    suffered by claimant that led to her anxiety, PTSD and depression
    was not "greater than that which other similarly situated workers
    experienced in the normal work environment" (Matter of Lozowski v
    Wiz, 134 AD3d at 1178 [internal quotation marks and citation
    omitted]). Regarding the incident, claimant testified that she
    was standing outside the examiner's cubicle discussing a work
    issue when he became angry, grabbed the arms of his chair and
    began "shaking," gritting his teeth and "seething," making a
    hissing sound. However, he remained seated, facing his computer
    and did not make verbal or physical threats or raise his voice.
    While claimant testified that the examiner swore at her during
    the encounter, the WCLJ credited a coworker who testified that
    she had overheard "a work interaction" in which claimant and the
    examiner "disagreed" and that she had informed claimant, after
    the incident, that the examiner used profanity after claimant
    walked away from the disagreement. The WCLJ also discredited
    claimant's account of the incident and her claim that this brief
    episode left her terrified, based upon her testimonial demeanor
    as well as her inconsistent accounts and actions after the
    incident, including claimant's return to the examiner's work area
    shortly after the incident to speak with a coworker; her treating
    physician's testimony that she had inconsistently reported that
    -4-                522424
    the examiner had made knifelike gestures at her; her testimony
    and emails establishing that, the day after the incident, she had
    a meeting with the examiner and later reported that the matter
    was "settled" and that they were "moving forward with a good
    working relationship"; and her reassignment to another unit in
    April 2013 where she did not work with or supervise the examiner.
    Deferring to the Board's credibility determinations (see
    Matter of Hill v Shoprite Supermarkets, Inc., 140 AD3d 1564, 1565
    [2016]), we find that the record as a whole supports its
    conclusion that this was, at most, "an isolated incident of
    insubordination" to which the employer appropriately responded,
    which was not so improper or extraordinary as to give rise to a
    viable claim for a work-related injury. Accordingly, we find no
    basis to disturb the Board's determination that claimant's
    work-related stress did not exceed that which could be expected
    by a supervisor in a normal work environment (see Matter of
    Lozowski v Wiz, 134 AD3d at 1178; Matter of Guillo v NYC Hous.
    Auth., 115 AD3d at 1141).
    Finally, we are unpersuaded by claimant's contention that
    the unannounced presence at the hearing of the supervising WCLJ
    (the presiding WCLJ's supervisor) or claimant's employment by the
    Board gave rise to an appearance of impropriety or conflict of
    interest requiring recusal of the presiding WCLJ.1 While the
    supervising WCLJ acknowledged, when asked, that it was not normal
    practice to observe hearings, there was nothing inappropriate in
    the supervisory observation, and claimant failed to identify any
    basis for the presiding WCLJ's mandatory or discretionary recusal
    (see Judiciary Law § 14; see also 22 NYCRR 100.2; People v
    Alteri, 47 AD3d 1070, 1070-1071 [2008]). Moreover, a review of
    the record discloses no indication of partiality, appearance of
    impropriety or unfairness in the conduct of the hearings or the
    1
    Claimant's request that her claim be adjudicated by an
    outside arbiter pursuant to Workers' Compensation Law § 20 (2)
    was denied in writing on the ground that her title as a Principal
    Workers' Compensation Examiner did not qualify her for this
    Employee Claim Resolution Program. Claimant does not make any
    argument on appeal that this determination was incorrect.
    -5-                  522424
    determination of noncompensability. Claimant's remaining
    contentions have been reviewed and, to the extent that they are
    preserved, have been determined to lack merit.
    Peters, P.J., Garry, Egan Jr. and Mulvey, JJ., concur.
    ORDERED that the decision is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 522424

Judges: Rose, Peters, Garry, Egan, Mulvey

Filed Date: 11/17/2016

Precedential Status: Precedential

Modified Date: 11/1/2024