| Matter of Pearson v Bestcare |
| 2008 NY Slip Op 01265 [48 AD3d 862] |
| February 14, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Yvonne Pearson, Appellant, vBestcare et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stewart, Greenblatt, Manning & Baez, Syosset (Patrick M. Conroy of counsel), for Bestcareand another, respondents.
Peters, J.P. Appeal from a decision of the Workers' Compensation Board, filed April 27,2006, which ruled that claimant sustained a further causally related disability subsequent to April1, 2001.
Claimant sustained an established injury to her back on January 1, 1996 and was paidworkers' compensation benefits until October 1996. In April 1999, a Workers' CompensationLaw Judge (hereinafter WCLJ) determined that claimant neither sustained a permanent injury norhad a further causally related disability, and closed the case. Although claimant did not request areview of that decision by the Workers' Compensation Board, her treating physician sought toreopen her claim in June 1999. Following a hearing in October 2003, a WCLJ found no furthercausally related disability and closed the case. Claimant applied for Board review and, in May2004, the Board rescinded the WCLJ's decision, finding that the record needed to be more fullydeveloped in order to properly determine whether her condition had changed and if claimantsuffers from a further causally related disability.
Beginning in November 2004, testimony was taken from five physicians, who offered [*2]conflicting opinions concerning claimant's alleged disability. Basedon this evidence, a WCLJ determined that claimant suffers from a further causally relateddisability, albeit mild, and awarded her workers' compensation benefits in the amount of $40 perweek beginning April 1, 2001. This decision was affirmed on review by the Board and claimantnow appeals.
We affirm. It is well settled that it is within the Board's discretion to resolve conflictingmedical opinions (see Matter of Cullenv City of White Plains, 45 AD3d 1167, 1168 [2007]; Matter of Raffiani v Allied Sys., Ltd., 27 AD3d 983, 984 [2006];Matter of Robinson v New VentureGear, 9 AD3d 571, 572-573 [2004]). Here, the employer's medical expert testified thatthere were no indications to substantiate claimant's subjective complaints of pain since her injuryand he found evidence that she was feigning her condition, although he conceded that she mayhave a mild degree of disability. Although claimant's expert opined that she suffers from a moresevere further causally related disability, the Board is entitled to credit the opinion of theemployer's expert. Accordingly, as we find that the Board's determination—that claimantsuffers from a mild further causally related disability—is supported by substantialevidence, it will not be disturbed, notwithstanding evidence that supported a contrary position(see Matter of Curatolo v SofiaFabulous Pizza, 41 AD3d 1049, 1051 [2007]; Matter of Gilman v Champlain Val. Physicians Hosp., 23 AD3d860, 861 [2005]).
Carpinello, Rose, Kane and Malone Jr., JJ., concur. Ordered that the decision is affirmed,without costs.