Matter of Jones v. Consolidated Edison Company of New York, Inc. ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 2, 2015 519012
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In the Matter of the Claim of
SHERMAN JONES,
Respondent,
v
MEMORANDUM AND ORDER
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC., et al.,
Appellants.
WORKERS' COMPENSATION BOARD,
Respondent.
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Calendar Date: May 26, 2015
Before: Lahtinen, J.P., McCarthy, Rose and Clark, JJ.
__________
Cherry, Edson & Kelly, LLP, Tarrytown (Ralph E. Magnetti of
counsel), for appellants.
Eric T. Schneiderman, Attorney General, New York City
(Donya Fernandez of counsel), for Workers' Compensation Board,
respondent.
__________
McCarthy, J.
Appeal from a decision of the Workers' Compensation Board,
filed August 2, 2013, which, among other things, ruled that
claimant sustained a causally related occupational disease and
awarded workers' compensation benefits.
Claimant worked for the employer for 42 years as a customer
service representative. In connection with his duties, claimant
would answer multiple telephone calls a day and cradle the
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telephone between his shoulder and neck while simultaneously
using the computer to input customer information. In October
2010, claimant sought medical treatment for neck pain and was
subsequently diagnosed with a repetitive stress injury to his
neck. Thereafter, claimant filed a claim for workers'
compensation benefits, claiming that his condition was causally
related to his employment. The Workers' Compensation Law Judge
granted the application and awarded workers' compensation
benefits. Ultimately, the Workers' Compensation Board, after
full Board review, ruled that claimant sustained an occupational
disease and awarded workers' compensation benefits. The employer
and its workers' compensation carrier (hereinafter collectively
referred to as the employer) now appeal.
We affirm. An occupational disease is a condition
"resulting from the nature of employment" and not the
environmental conditions of the workplace (Workers' Compensation
Law § 2 [15]; see Matter of Baker v Weyerhaeuser, 19 AD3d 850,
850 [2005]). In order for an occupational disease to be
established, "the claimant must establish a recognizable link
between his or her condition and a distinctive feature of his or
her employment" (Matter of Camby v System Frgt. Inc., 105 AD3d
1237, 1237 [2013] [internal quotation marks and citation
omitted]; see Matter of Bates v Marine Midland Bank, 256 AD2d
948, 949 [1998]). Here, the unrefuted medical evidence
established that claimant's cervical injury was causally related
to the nature of his employment activities. As the record amply
establishes that the repetitive nature of claimant's employment
duties caused the disability by exacerbating a dormant and
nondisabling preexisting condition, the Board's decision is
supported by substantial evidence and will not be disturbed (see
Matter of Tipping v Orthopedic Surgeons of Long Is., 68 AD3d
1224, 1225-1226 [2009]; Matter of Pulos v Asplundh Tree, 29 AD3d
1073, 1074 [2006]; Matter of Ball v New Era Cap Co., Inc., 21
AD3d 618, 619-620 [2005]).
The employer's remaining contentions have been reviewed and
found to be unpersuasive.
Lahtinen, J.P., Rose and Clark, JJ., concur.
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ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court