| Matter of Cullen v City of White Plains |
| 2007 NY Slip Op 09184 [45 AD3d 1167] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kevin Cullen, Respondent, v City ofWhite Plains et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
Spain, J. Appeal from a decision of the Workers' Compensation Board, filed September 11,2006, which ruled that claimant had a 50% schedule loss of use of his right leg.
Claimant injured his right knee in a work-related accident in 1996. This injury requiredimmediate surgery as well as follow-up surgeries in 1997 and 2000. In 2001, both partiessubmitted medical reports concerning schedule loss of claimant's right leg, with claimant'sphysician estimating a 75% schedule loss and the employer's physician finding a 20% scheduleloss. Thereafter, the parties stipulated to a 35% schedule loss, which was approved by a Workers'Compensation Law Judge (hereinafter WCLJ) in July 2001.
Subsequently, claimant required further treatment and partial knee replacement surgery [*2]was performed in November 2002. At hearings before the WCLJ,claimant's medical expert testified that the partial knee replacement surgery had resulted in a 50%schedule loss of use of claimant's right leg, while the employer's expert opined that claimant'sschedule loss remained at the 20% level he had previously determined in 2001. The WCLJcredited claimant's expert and concluded that, following the partial knee replacement, claimantsuffered from a 50% schedule loss of the use of his right leg. The Workers' Compensation Boardaffirmed the WCLJ's decision, prompting this appeal.
It is well settled that resolution of conflicting medical opinions is within the Board'sdiscretion (see Matter of Raffiani vAllied Sys., Ltd., 27 AD3d 983, 984 [2006]; Matter of Robinson v New Venture Gear, 9 AD3d 571, 572-573[2004]). Furthermore, "[s]o long as the Board's determination is supported by substantialevidence it will be upheld" (Matter ofGilman v Champlain Val. Physicians Hosp., 23 AD3d 860, 861 [2005]; see Matter of Lopez v Superflex, Ltd.,31 AD3d 914, 914 [2006]). Here, while the Board's medical guidelines do not specificallyaddress the impact of a partial knee replacement on schedule loss, claimant's expert found thatthe partial knee replacement—which included bone loss—and instability of the kneejoint, which developed after the stipulation, decreased claimant's range of motion and resulted ina 50% schedule loss of use of his right leg. The employer's expert offered a contrary opinion tothe effect that claimant's partial knee replacement had no effect on schedule loss. As the Boardwas free to credit claimant's expert opinion over that of the employer's expert, and as we find thatthis determination was supported by substantial evidence, we affirm (see Matter of Ogden v PCA Intl., 26AD3d 625, 625-626 [2006]).
The remaining contention by the employer that the Board ignored the issue of apportionmentregarding a prior injury to claimant was not raised before the Board and is not preserved for ourreview (see Matter of Provenzano vPepsi Cola Bottling Co., 30 AD3d 930, 932 [2006]).
Cardona, P.J., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the decision isaffirmed, without costs.