| Matter of Atkinson v Joseph Baldwin Constr. |
| 2007 NY Slip Op 06784 [43 AD3d 1240] |
| September 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Timmy Atkinson, Appellant, v JosephBaldwin Construction et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stockton, Barker & Mead, Albany (Leith Ramsey of counsel), for Joseph BaldwinConstruction, respondent.
Spain, J. Appeals from a decision and an amended decision of the Workers' CompensationBoard, filed March 29, 2006 and May 9, 2006, which, among other things, clarified a previousdecision of the Board filed April 23, 2002.
In July 1998, claimant sustained a compensable injury to his right shoulder while erectingscaffolding for the employer at a prison facility in the Town of Malone, Franklin County (see Atkinson v State of New York, 20AD3d 739, 739-740 [2005]). Thereafter, defendant filed a workers' compensation claim and,while the claim concerning his right shoulder was progressing, claimant began complaining ofproblems with his left shoulder. Claimant asserted that his left shoulder problems were aresult—either directly or consequentially—of the July 1998 accident, and evidenceregarding the left shoulder was adduced. In a decision filed on October 15, 2001, a Workers'Compensation Law Judge (hereinafter WCLJ) determined, among other things, that no causalrelationship existed between claimant's left shoulder injury and the July 1998 accident. In anApril 23, 2002 decision affirming the determination of the WCLJ, the Workers' CompensationBoard found, "after a review of the entire record, that the issue of [*2]causally related left arm should be affirmed." The Board furtherfound, however, that "the issue of schedule of loss of use for both arms needs to be developedfurther on the record." This decision was not appealed by claimant.
Following the Board's decision, fact finding continued with respect to the right shoulder,with submission of some evidence regarding the left arm, until a WCLJ decision, filed onNovember 23, 2005, reiterated that the "[c]laim for the left arm was previously disallowed." Inaffirming the WCLJ's decision, the Board, in a decision filed March 29, 2006 and an amendeddecision filed May 9, 2006, clarified its April 23, 2002 decision by stating that, "upon review ofthe entire record, [its April 23, 2002 decision] did affirm the WCLJ decision filed October 15,2001, which found that there was no causally related left arm condition, and inadvertently statedin the decision that the issue of schedule loss of use for 'both arms' be developed. The issue ofschedule loss of use for the right arm alone was the issue to be developed." Claimant nowappeals.
In our view, by clarifying its April 23, 2002 decision, the Board's 2006 decisions effectivelyamended it (see Workers' Compensation Law § 123) and, as a result, we will reachthe issue of whether the Board's determination of no causal relationship prior to April 23, 2002with respect to the left arm is supported by substantial evidence. Upon review, we find that it is.In this regard, Edwin Mohler, a physician who reviewed claimant's history and examined him inNovember 1999 on behalf of the employer's workers' compensation carrier, concluded that therewas no direct or consequential relationship between claimant's left shoulder injury and the July1998 accident. Although claimant and his experts testified to the contrary, we note that thetestimony of the experts supporting claimant's position was found to be of little probative valueand claimant was found not to be a credible witness. According proper deference to the Board'sassessments of witness credibility and resolution of conflicting medical evidence, we decline todisturb the Board's conclusion (seeMatter of Ferraina v Ontario Honda, 32 AD3d 643, 644 [2006]; Matter of Peterson v Suffolk County PoliceDept., 6 AD3d 823, 824 [2004]).
Furthermore, to the extent that claimant contends that the finding of no causal relationshipbetween his left shoulder injury and the July 1998 accident left open the issue of a consequentialleft shoulder injury arising from the same accident, we disagree. A causal connection isindispensable to the establishment of any workers' compensation claim, and this is as true of aconsequential injury claim as it is a claim of direct injury (see Matter of Senecal v Bendix, 29 AD3d 1232, 1233 [2006];see generally Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845, 846[2002]; Matter of Petillo v Wyckoff Hgts. Hosp., 288 AD2d 515, 516 [2001]). Here,claimant's theory of consequential injury to his left shoulder due to overcompensation for hisright shoulder injury was before the Board when it determined that "there was no causally relatedleft arm condition," and thus its decision disallowed any claim for consequential injury to the leftshoulder at that time.
Finally, we note that inasmuch as we are affirming the Board's April 23, 2002 determination,as amended by its 2006 decisions, we make no finding with respect to evidence in the recordpostdating that decision.
Crew III, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the decision and amendeddecision are affirmed, without costs.