Claim of Johnson v. County of Clinton

46 A.D.3d 1175, 847 N.Y.S.2d 775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2007
• Status: Published

Opinion

Crew III, J.P.

Appeal from a decision of the Workers’ Compensation Board, filed August 4, 2006, which ruled that the death of claimant’s decedent did not arise out of his employment and denied her claim for workers’ compensation death benefits.

Claimant filed for workers’ compensation death benefits after her husband died at work. A Workers’ Compensation Law Judge denied the claim, finding that the presumption of compensability had been rebutted and decedent’s death was not causally related to his employment. The Workers’ Compensation Board affirmed the denial of benefits, prompting this appeal.

Initially, we note that the presumption of compensability is inapplicable here, as decedent’s death was witnessed by fellow employees and explained by autopsy (see Matter of Crapo v City of Buffalo, 24 AD3d 838, 839 [2005]). We further are of the opinion that there is substantial evidence supporting the Board’s determination based upon the testimony of the workers’ compensation carrier’s medical expert. While claimant’s expert rendered a contrary opinion as to decedent’s cause of death, we need note only that resolution of such conflicting opinions rests with the Board, whose determination we accord due deference (see e.g. Matter of Dean v Bill Rapp Pontiac, Inc., 30 AD3d 806, 807 [2006]).

Peters, Spain, Carpinello and Mugglin, JJ, concur. Ordered that the decision is affirmed, without costs.