Bus Camera Video Sinks NY City Driver’s Back Injury Claim
Substantial evidence supported the New York Workers’ Compensation Board’s determination that a claimant, a bus driver, had not sustained an injury arising out of and in the course of his employment where surveillance video evidence contradicted the driver’s contention that he sustained a back injury when his bus hit a large pothole [Matter of Mendrok v. New York City Tr. Auth., 2022 N.Y. App. Div. LEXIS 685 (3d Dept. Feb. 3, 2022)]. Stressing that it was for the Board to weigh the evidence and determine if a compensable accident had occurred, the appellate court said substantial evidence supported the Board’s findings.
Background
Claimant contended the incident occurred at about 5:30 p.m. on September 25, 2018, at a specific intersection along his route. The employer controverted the claim and, at the hearing, played a portion of a DVD with surveillance footage from the bus on the day of the alleged incident. Due to technical difficulties, however, and time constraints, only the 15 minutes preceding the time of the alleged incident could be viewed, not the entire footage. The WCLJ credited claimant’s testimony regarding the incident and established the claim for a work-related injury to claimant’s back. Upon administrative appeal, the Board reversed, finding that the DVD surveillance footage, which the Board viewed in full, contradicted claimant’s description of the event that allegedly caused the injury. Claimant appealed.
Appellate Court’s Decision
Initially, the Court noted that whether a compensable accident had occurred was a question of fact to be resolved by the Board and its determination would not be disturbed when supported by substantial evidence. It added that while N.Y. Workers’ Comp. Law § 21(1) provided a presumption that an accident that occurs in the course of employment also arises out of that employment, the statutory presumption cannot be used to establish that an accident occurred in the first instance. The claimant was still required to demonstrate that the accident occurred in the course of, and arose out of, his or her employment.
The appellate court acknowledged that the claimant had testified that, when the bus hit a large pothole, it caused him and the bus to bounce up and down. The Board noted, however, that the DVD surveillance footage showed an uneventful period of claimant operating the bus, with no traumatic or shifting movements consistent with his version of the incident. As noted by the Board, on the DVD surveillance footage, claimant did not appear to be in any distress and could be seen reaching, bending and twisting. The employer’s general superintendent of safety and environmental management also testified that, upon receiving the report of claimant’s injury in April 2019, he drove to the intersection where claimant reported the incident had occurred but did not see a pothole [Author’s Note: The municipality would have had 6.5 months to repair the hole].
The appellate court stressed that after being transported to the emergency room, claimant was diagnosed with degenerative arthritis of the lumbar spine, as opposed to a traumatic back injury. Based on the foregoing, the court found that substantial evidence supported the Board’s finding that the evidence and testimony presented rebutted claimant’s allegation that he sustained a work-related injury, and its determination denying claimant’s request for workers’ compensation benefits would not be disturbed.