| Matter of Banner v Anheuser-Busch Cos., Inc. |
| 2009 NY Slip Op 00607 [59 AD3d 759] |
| February 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kenneth Banner, Appellant, vAnheuser-Busch Companies, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Wolff, Goodrich & Goldman, L.L.P., Syracuse (Robert E. Geyer Jr. of counsel), forAnheuser-Busch Companies, Inc. and another, respondents.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filed November 28,2007, which ruled that claimant did not sustain a causally related disability and denied his claimfor workers' compensation benefits.
Claimant, a forklift operator, allegedly injured his right knee and left hip in December 2005when he attempted to reset a pallet on a conveyor belt at his place of employment. Claimantceased working approximately three weeks later and thereafter filed this claim for workers'compensation benefits. Although a Workers' Compensation Law Judge initially established thecase and made an award of benefits, the Workers' Compensation Board subsequently rescindedthat decision without prejudice and directed that claimant be evaluated by an impartial specialist.Following submission of the specialist's report and additional testimony, the Board concludedthat claimant's disabling hip condition was not causally related to the December 2005 workinjury and, among other things, rescinded all prior awards. This appeal by claimant ensued.[*2]
We affirm. The injury to claimant's right knee apparentlyis resolved and, hence, the issue on appeal distills to whether there is substantial evidence tosupport the Board's conclusion that claimant's disabling hip condition is not causally related tohis injury at work. In this regard, the record reflects that all of the orthopedic surgeons whoevaluated claimant diagnosed him as suffering from avascular necrosis (also known as asepticnecrosis) of the left femoral head, and most agreed that this condition likely was idiopathic inorigin—meaning that it occurred without a known cause. What remained in dispute waswhether the December 2005 work injury aggravated or accelerated this preexisting condition,thus rendering the resulting disability compensable (see Matter of Duncan v John Wiley & Sons, Inc., 54 AD3d 1124,1125 [2008]).
Although claimant's treating orthopedic surgeons testified that the December 2005 incident"played a role in triggering the onset of symptoms" and "seems to have" made the preexistingcondition disabling, both the carrier's consultant and the impartial specialist testified to thecontrary, stating that such incident did not trigger claimant's symptoms or otherwise aggravateclaimant's preexisting condition. The resolution of conflicting medicalopinions—especially as it pertains to the issue of causation—lies within theprovince of the Board (see Matter ofCiafone v Consolidated Edison of N.Y., 54 AD3d 1135, 1136 [2008]; Matter of Hare v Champion Intl., 50AD3d 1254, 1255 [2008], lv dismissed 11 NY3d 863 [2008]), and its determinationon this point should be accorded deference by this Court (see Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890, 892[2008]). Inasmuch as the Board's finding of no causally related disability is supported bysubstantial evidence in the record as a whole, we decline to disturb it, despite other evidence thatcould support a contrary conclusion (see Matter of Curatolo v Sofia Fabulous Pizza, 41 AD3d 1049,1051 [2007]).
Finally, to the extent that the Board's file did not contain the minutes of claimant's testimonyas required by 12 NYCRR 300.13 (d), we do not find such omission to constitute reversibleerror. The pivotal issue here was whether there was sufficient medical evidence to support afinding of a causally related disability, and it is apparent from the Board's decision that it hadample opportunity to review and consider the reports and testimony offered by the variousmedical experts (cf. Matter of Maliszewska v Dupuy, 289 AD2d 683, 684 [2001], lvdenied 97 NY2d 612 [2002]).
Mercure, J.P., Peters, Kane and Malone Jr., JJ., concur. Ordered that the decision is affirmed,without costs.