| Matter of VanDermark v Frontier Ins. Co. |
| 2009 NY Slip Op 01742 [60 AD3d 1171] |
| March 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Donna VanDermark, Respondent, vFrontier Insurance Company 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.
Malone Jr., J. Appeals (1) from a decision of the Workers' Compensation Board, filedSeptember 21, 2007, which ruled that claimant has a permanent total disability, and (2) from adecision of said Board, filed July 16, 2008, which denied the applications of the employer and itsworkers' compensation carrier for reconsideration and/or full Board review.
In August 1998, claimant suffered a back injury while lifting heavy boxes at work. She fileda claim for workers' compensation benefits and was initially found to have a permanent partialdisability as the result of this work-related injury. Thereafter, further proceedings wereconducted in the case and hearings were held on the issue of the degree of claimant's disabilitysubsequent to August 2004. In December 2006, a Workers' Compensation Law Judge issued adecision finding that claimant had a permanent partial disability subsequent to August 9, 2004,except for periods following surgery. The Workers' Compensation Board, however, concludedthat claimant had a permanent total disability after this date and modified the award of benefits[*2]accordingly. The employer and its workers' compensationcarrier (hereinafter collectively referred to as the employer) appeal from this decision as well asa subsequent decision denying the employer's applications for reconsideration and/or full Boardreview.
Initially, the employer contends that insufficient evidence was presented to support theBoard's finding that claimant suffered a permanent total disability. Based upon our review of therecord, we disagree. Conflicting medical evidence was presented concerning the extent ofclaimant's disability. "This Court accords great deference to the Board's resolution of issuesconcerning conflicting medical evidence and witness credibility" (Matter of Williams v Colgate Univ.,54 AD3d 1121, 1123 [2008] [citations omitted]). In addition, this Court has acknowledgedthat the Board may accept or reject portions of a medical expert's opinion (see id.).
In the case at hand, the orthopedic surgeon who has treated claimant since 2002 testified thatshe is totally disabled and unable to engage in any gainful employment. Another physician, whoexamined claimant in 2002, 2005 and 2006, opined that she has a permanent partial markeddisability, but stated that there is no reasonable expectation that she can return to work. Thereports of other physicians who examined claimant indicated that she suffers from a permanentpartial disability. In reaching its conclusion that claimant has a permanent total disability, theBoard chose to credit the testimony of claimant's treating orthopedist and the opinion of the otherphysician who stated that claimant is no longer able to work over the contrary medical evidencepresented. The Board was clearly entitled to weigh the evidence in this manner (see Matter ofUbban v County of Westchester, 195 AD2d 726, 727 [1993]; see also Matter of Weber vNorthberry Constr., 261 AD2d 744, 745 [1999]). While the employer contends that theBoard erroneously credited the testimony of claimant's treating orthopedist inasmuch as hedisregarded the workers' compensation guidelines, we note that the guidelines provide usefulcriteria, but that the ultimate determination of total disability lies with the Board (see Matter of Hare v Champion Intl.,50 AD3d 1254, 1255 [2008], lv dismissed 11 NY3d 863 [2008]). Given thatsubstantial evidence supports the Board's decision, we find no reason to disturb it.
The employer also challenges the Board's decision denying its applications forreconsideration and/or full Board review. Our inquiry in this regard is limited to whether thedenial was arbitrary or capricious or an abuse of discretion (see Matter of Robinson v Interstate Natl. Dealer, 50 AD3d 1325,1326 [2008]). A review of the employers' applications discloses that the same arguments wereadvanced in support of each. Such arguments are directed at the sufficiency of the evidencesupporting a finding of total permanent disability, which issue was previously considered by theBoard. Notably, there is no indication that new evidence germane to this issue was notpreviously available as the medical reports cited by the employer were in existence prior to theclose of the hearings (see Matter ofEarnest v J.P. Molyneux Studio, Ltd., 47 AD3d 1176, 1177 [2008], lv dismissed10 NY3d 855 [2008]). In view of the foregoing, we do not find that the Board's denial of theemployer's applications was arbitrary, capricious or an abuse of discretion.
We have considered the employer's remaining contentions and find them to be unavailing.
Cardona, P.J., Mercure, Rose and Kavanagh, JJ., concur. Ordered that the decisions areaffirmed, without costs.