IN RE: the Claim of Oswaldo PINTO (2005)

Appeals from a decision and an amended decision of the Workers' Compensation Board, filed March 17, 2004 and September 15, 2004, which ruled that claimant did not sustain a causally related injury and denied his claim for workers' compensation benefits.

Claimant, a teacher working directly with inmates at the “maxi-maximum” security Southport Correctional Facility in Chemung County, was taken to the hospital by ambulance from the facility on October 25, 2001 after suffering severe head pains and disorientation while at work.   He filed a claim for workers' compensation benefits for depression, headaches and memory loss which he attributed to work-related stress.   He has no memory of what occurred on the date of injury, and was not able to return to work.   Claimant's treating psychiatrist offered the unrefuted opinion that his psychiatric illness was causally related to and triggered by work-related stress.   Following hearings, the Workers' Compensation Law Judge disallowed the claim.   The Workers' Compensation Board affirmed, in an amended decision, determining that the claim must be denied as the presumption contained in Workers' Compensation Law § 21(1) had been rebutted, that the claim for mental injuries was barred by Workers' Compensation Law § 2(7), and because the stress that claimant experienced was not greater than that usually encountered in this work environment or the result of retaliatory action by the employer.   Claimant now appeals, and we affirm.

 To be compensable under the Workers' Compensation Law, an accidental injury must have arisen both “out of” and “in the course of” employment (Workers' Compensation Law § 2[7];  see Matter of Wichtendahl v. Arrow Bus Line, 307 A.D.2d 400, 401, 761 N.Y.S.2d 718 [2003] ). Unexplained or unwitnessed accidents which occur in the course of employment, as here, are presumed to arise out of such employment under Workers' Compensation Law § 21(1) (see Matter of Brown v. Clifton Recycling, 1 A.D.3d 735, 736, 767 N.Y.S.2d 160 [2003] ).   This presumption, however, may be rebutted by submission of “substantial evidence to the contrary” (Workers' Compensation Law § 21;  see Matter of Rosen v. First Manhattan Bank, 84 N.Y.2d 856, 857, 617 N.Y.S.2d 455, 641 N.E.2d 1073 [1994];  Matter of Turner v. F.J.C. Sec. Servs., 306 A.D.2d 649, 649-650, 760 N.Y.S.2d 602 [2003];  Matter of Keevins v. Farmingdale UFSD, 304 A.D.2d 1013, 1014, 759 N.Y.S.2d 213 [2003];  Matter of MacKenzie v. Management Recruiters, 271 A.D.2d 822, 823, 706 N.Y.S.2d 247 [2000], lv. denied 95 N.Y.2d 768, 721 N.Y.S.2d 605, 744 N.E.2d 141 [2000] ).¹  Upon review, we find that the testimony and evidence support the Board's denial of this claim.

 Here, the claim is premised upon claimant's testimony that the employer shifted his work schedule by one-half hour, added certain job-related duties such as requiring follow-up visits with student inmates and cleanliness inspections, searched the teachers' cell study office after impermissible items were observed, and reprimanded another teacher for missing a training session.   To the extent that the Board found that the underlying claim is barred by Workers' Compensation Law § 2(7), we cannot agree, as there was no proof that claimant was subject to any “personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination,” as required to trigger that exclusion (Workers' Compensation Law § 2[7];  see Matter of De Paoli v. Great A & P Tea Co., 94 N.Y.2d 377, 380, 704 N.Y.S.2d 527, 725 N.E.2d 1089 [2000] ).   None of the enumerated personnel decisions is involved in this claim (see Matter of Ford v. Unity House of Troy, 292 A.D.2d 717, 718, 739 N.Y.S.2d 482 [2002], lv. denied 98 N.Y.2d 610, 749 N.Y.S.2d 2, 778 N.E.2d 553 [2002] ), and the indirect deleterious effects to claimant attributable to another teacher being disciplined do not trigger that exclusion (see Matter of De Paoli v. Great A & P Tea Co., supra at 380, 704 N.Y.S.2d 527, 725 N.E.2d 1089).   Also, the record establishes that claimant's symptoms were longstanding, predating these work-related changes and, thus, it cannot be said that his symptoms were the “direct consequence” of any personnel decision so as to trigger this exclusion (Workers' Compensation Law § 2[7];  see Matter of Bottieri v. Travelers Ins., 309 A.D.2d 1100, 1101, 766 N.Y.S.2d 405 [2003] ).

 We are, nonetheless, convinced that the Board's alternate basis for the denial of the underlying claim, on the merits, is supported by substantial evidence.   While “a mental injury is generally compensable to the same extent as a physical injury” (Matter of De Paoli v. Great A & P Tea Co., supra at 379-380, 704 N.Y.S.2d 527, 725 N.E.2d 1089), “a claim for work-related stress cannot be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment” (Matter of Spencer v. Time Warner Cable, 278 A.D.2d 622, 623, 717 N.Y.S.2d 711 [2000], lv. denied 96 N.Y.2d 706, 725 N.Y.S.2d 278, 748 N.E.2d 1074 [2001];  see Matter of Clark v. Oswego County Self Ins. Plan, 17 A.D.3d 882, 883, 793 N.Y.S.2d 258 [2005];  Matter of Pecora v. County of Westchester, 13 A.D.3d 916, 918, 786 N.Y.S.2d 653 [2004];  Matter of Bottieri v. Travelers Ins., supra at 1102, 766 N.Y.S.2d 405;  Matter of Ford v. Unity House of Troy, supra at 719, 739 N.Y.S.2d 482).   As the record contains substantial evidence to support the Board's factual conclusion that the pressures encountered by claimant, while understandably considerable, were not greater than those experienced by his peers during the time in question, the Board's determination to deny his claim on this ground will not be disturbed (see Matter of Bottieri v. Travelers Ins., supra at 1102, 766 N.Y.S.2d 405;  see also Matter of Clark v. Oswego County Self Ins. Plan, supra at 882-883, 793 N.Y.S.2d at 259-260).   Thus, despite the unrefuted proof of causation, the dispositive factual determination of the Board which we affirm is that claimant did not sustain a compensable accident (see Matter of Pecora v. County of Westchester, supra;  see also Matter of Leggio v. Suffolk County Police Dept., 96 N.Y.2d 846, 847, 729 N.Y.S.2d 664, 754 N.E.2d 766 [2001], revg. on dissenting mem. below 245 A.D.2d 897, 899, 666 N.Y.S.2d 815 [1997] [Mercure, J.];  Matter of Clark v. Oswego County Self Ins. Plan, supra ).

ORDERED that the decision and amended decision are affirmed, without costs.

FOOTNOTES

1.   We note that rebuttal of the presumption contained in Workers' Compensation Law § 21(1) does not require irrefutable proof excluding all other conclusions other than that offered by the employer that the accidental injury was not work related.   This Court must affirm the Board's ultimate determination as long as it is supported by substantial evidence, notwithstanding the presence of substantial evidence to support the opposite result (see Matter of Pecora v. County of Westchester, 13 A.D.3d 916, 918, 786 N.Y.S.2d 653 [2004] ).   Thus, we take this opportunity to clarify that the often quoted language contained in Matter of Iacovelli v. New York Times Co., 124 A.D.2d 324, 507 N.Y.S.2d 922 [1986]-“To rebut this presumption, an employer must present substantial evidence to the contrary which, as a matter of law, precludes the Board from crediting any explanation of the accident except that offered by the employer” (id. at 325-326, 507 N.Y.S.2d 922)-should be interpreted to mean, simply, that substantial evidence to the contrary is required to rebut this presumption.

SPAIN, J.

CREW III, J.P., PETERS, MUGGLIN and ROSE, JJ., concur.