| Matter of Peterson v Faculty Student Assn. |
| 2008 NY Slip Op 09681 [57 AD3d 1139] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mIn the Matter of the Claim of Barbara Peterson, Respondent, v FacultyStudent Association et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Lewis & Lewis, Jamestown (George Panebianco of counsel), for Barbara Peterson, respondent. Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), for Workers'Compensation Board, respondent.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed June 7, 2007,which, among other things, ruled that apportionment did not apply to claimant's workers' compensationaward.
In April 2005, claimant, during the course of her employment with the Faculty Student Associationas a food service worker, slipped while carrying a steam table and injured her left knee. Thirteen yearsearlier, claimant had seriously injured this knee in an automobile accident and, in 1995, reinjured it intwo work-related accidents. After the April 2005 injury, the knee failed to respond to treatment andclaimant remained unable to return to work. Her treating physician requested authorization for a totalleft knee replacement. The employer and its workers' compensation carrier (hereinafter collectivelyreferred to as the carrier) did not take [*2]issue with claimant's need fora total knee replacement. Instead, the carrier argued that there should be some apportionment of thetotal cost of this surgery between claimant's prior accident and this most recent work-related accident.In particular, the carrier claimed that since claimant's own physician concluded that the current accidentwas only 15% responsible for the need for a total knee replacement, it should only be required to paythat percentage of the total cost of this surgical procedure. The Workers' Compensation Law Judge(hereinafter WCLJ) authorized the left knee replacement surgery, rejected the carrier's claim ofapportionment and found that the carrier was responsible for the entire cost of the surgery. The carriersought review of this decision from the Workers' Compensation Board. The Board affirmed theWCLJ's decision, prompting this appeal.
We agree with the Board that this case falls within the general, well established rule that"apportionment is not appropriate where the claimant's prior condition was not the result of acompensable injury and such claimant was fully employed and able to effectively perform his or herduties despite the noncompensable preexisting condition" (Matter of Bruno v Kelly TempServ., 301 AD2d 730, 731 [2003]; accord Matter of Brown v Harden Furniture, 34 AD3d 1028, 1029[2006]; Matter of Bremner v New VentureGear, 31 AD3d 848, 848 [2006]; Matter of Krebs v Town of Ithaca, 293 AD2d883, 883-884 [2002], lv denied 100 NY2d 501 [2003]). Specifically, we reject theemployer's argument that an exception to the rule against apportionment should apply (see Matter of Scally v Ravena Coeymans SelkirkCent. School Dist., 31 AD3d 836, 837 [2006]). In Matter of Scally, this Courtdeferred to the Board's determination that the case "fell in the small subset of cases involving scheduleloss of use awards" (id. at 838) and that the claimant's prior nonwork-related injury wouldhave resulted in a schedule loss of use award had the injury been work-related. Here, in contrast, theBoard determined that claimant's preexisting condition "was not disabling for workers' compensationpurposes." It is uncontroverted that claimant, at the time of her accident, was working full time as afood service worker without restriction and, while her knee was at times symptomatic, she was notdisabled (see Matter of Bruno v Kelly Temp Serv., 301 AD2d at 731). Moreover, this casedoes not involve a schedule loss of use claim. Under the circumstances presented, the Board'sconclusion that claimant was not disabled as the result of her 1992 car accident was supported bysubstantial evidence, and its determination that apportionment is not appropriate enjoys ample supportin the record (see Matter of Bremner v New Venture Gear, 31 AD3d at 849; Matter ofKrebs v Town of Ithaca, 293 AD3d at 883). Moreover, while the medical experts offered by theparties rendered conflicting opinions as to the degree to which each of claimant's prior accidentscontributed to her current condition, and the resulting need for surgery,[FN*]the assessment of these opinions presents credibility determinations to be made by the Board and,absent a clear abuse of the Board's discretion, its determinations are entitled to deference (see Matter of Dimitriadis v One Source, 53AD3d 704, 705 [2008]).
Finally, to the extent that the employer's notice of appeal seeks a review of the decision [*3]of the WCLJ filed June 1, 2007, such an appeal cannot be undertakenuntil the Board has conducted its full review of that determination (see Workers' CompensationLaw § 23).
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the decision is affirmed, withoutcosts.
Footnote *: Claimant's physician concluded thatthe 1992 motor vehicle accident was 85% responsible for claimant's need for surgery and that the 2005accident was 15% responsible. The carrier's independent medical examiner attributed 15% ofclaimant's need for this procedure to the 2005 accident, 20% to the two accidents that occurred in1995, and 65% to the 1992 motor vehicle accident.