| Matter of Baer v Eden Park Nursing Home |
| 2008 NY Slip Op 04801 [51 AD3d 1344] |
| May 29, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claims of Linda Baer, Respondent, v Eden ParkNursing Home et al., Appellants, and Compensation Risk Managers, Respondent. Workers'Compensation Board, Respondent. |
—[*1] Ryan, Roach & Ryan, Kingston (Sean J. Denvir of counsel), for Compensation RiskManagers, respondent.
Cardona, P.J. Appeal from a decision of the Workers' Compensation Board, filed June 5,2006, as amended by decision filed April 26, 2007,which, among other things, ruled thatclaimant did not sustain causally related injuries and denied her claims for workers'compensation benefits.
Claimant sustained a work-related injury to her back in June 2000 and was awarded benefits.Claimant thereafter filed four additional claims for workers' compensation benefits including,insofar as is relevant to this appeal, claims for injuries allegedly sustained on March 25, 2004 andApril 18, 2004. After receiving testimony from claimant's neurosurgeon and [*2]chiropractor, as well as the neurosurgeon who performed theindependent medical examination of claimant on behalf of the employer, a Workers'Compensation Law Judge (hereinafter WCLJ) disallowed the 2004 claims, finding that there wasinsufficient medical evidence to support claimant's contention that the cited claims were for"new" injuries. Accordingly, the WCLJ deemed any disability or treatment incurred by claimantsubsequent to April 2004 to be attributable solely to the June 2000 injury. By decision filed June5, 2006, a panel of the Workers' Compensation Board affirmed, prompting claimant, theemployer and the workers' compensation carrier to seek full Board review. Thereafter, byamended decision filed April 26, 2007, the Board panel revised certain of its findings butotherwise affirmed the WCLJ's decision. This appeal by the employer and carrier ensued.
We affirm. "It is well settled that it is for the Board to resolve conflicting expert medicaltestimony, especially where such testimony concerns the issue of causation" (Matter of Mayers v Kings CountyHosp., 29 AD3d 1239, 1240 [2006] [citations omitted]; see Matter of Pearson v Bestcare, 48AD3d 862, 863 [2008]; Matter ofWalker v TNT Red Star Express, 25 AD3d 945, 946 [2006]). To that end, "the Boardmay selectively adopt or reject portions of a medical expert's testimony" (Matter of Bunnell v Sangerfield Inn, 35AD3d 1021, 1022 [2006] [internal quotation marks and citation omitted]), and its decision,if supported by substantial evidence, will not be disturbed—despite the presence ofevidence that could support a contrary conclusion (see id. at 1022-1023; see alsoMatter of Walker v TNT Red Star Express, 25 AD3d at 946-947).
Here, although the neurosurgeon who performed the independent medical examination wasof the view that the April 2004 injury was the precipitating cause of claimant's severe symptomsand resulting need for surgery, such opinion was premised upon his conclusion that there was noprior evidence of sciatic or radicular symptoms. Both claimant and her chiropractor, however,testified that claimant did have radicular symptoms prior to the April 2004incident—namely, pain radiating down her left leg—albeit not to the degree that wasexperienced after that incident. Similarly, while claimant's treating neurologist initially opinedthat claimant's hospitalization and surgery in June 2004 was the product of a "cumulativesituation," with the April 2004 incident "probably" representing "the most direct . . .etiology" for claimant's predicament, when asked whether the April 2004 incident constituted anew injury or an exacerbation of claimant's prior condition, he replied that any answer to thatquestion would involve speculation. When asked the same question regarding the March 2004incident, claimant's neurologist replied, "I have no way to distinguish the two." The testimonyoffered by claimant's chiropractor as to whether claimant sustained a work-related injury to herback in March 2004 or April 2004 was equally inconclusive. The chiropractor noted that similarsymptoms were displayed by claimant throughout her treatment, and he concluded that the 2004events could have been considered either aggravations of claimant's prior condition or newincidents. In light of such testimony, the Board's finding that the 2004 incidents did not constitutenew injuries is supported by substantial evidence.
Peters, Carpinello, Kane and Stein, JJ., concur. Ordered that the decision is affirmed, withoutcosts.