| Matter of Curtis v Xerox |
| 2009 NY Slip Op 07187 [66 AD3d 1106] |
| October 8, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Deana Curtis, Respondent, v Xerox etal., Appellants. Workers' Compensation Board, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
McCarthy, J. Appeal from a decision of the Workers' Compensation Board, filed July 8,2008, which, among other things, ruled that claimant sustained a work-related occupationaldisease and awarded workers' compensation benefits.
During the course of her 33-year employment with the employer, claimant worked in variouspositions that required that she spend most of her day performing data entry on a keyboard. Afterdeveloping severe pain and swelling in her wrists, hands and fingers, claimant stopped workingin July 2005 pursuant to her doctor's orders and, thereafter, submitted a claim for workers'compensation benefits. Following hearings in early 2006, during which claimant testified thatshe visited the employer's plant medical department, a Workers' Compensation Law Judge(hereinafter WCLJ) directed the employer in June 2006 to produce the medical records. Afterfurther proceedings during which the records were not produced, the WCLJ rendered a decisionin January 2007 finding that claimant had not established occupationally acquired injuries.However, in August 2007, the Workers' Compensation Board rescinded the decision of theWCLJ and directed that the medical records be produced by the employer within two weeks, orthe Board would infer a diagnosis of a causally related occupational disease.[*2]
In October 2007, the parties again appeared before theWCLJ and, for the first time, the employer alleged that no medical records existed, followingwhich the WCLJ directed that the employer produce a lay witness to substantiate this claim.Thus, at a hearing in December 2007, the employer presented testimony from its workers'compensation coordinator that no medical records existed for claimant. In an ensuing decision,the WCLJ determined that, based upon the remaining evidence, claimant had failed to submitprima facie medical evidence of a work-related injury. However, the Board again reversed,finding that the WCLJ erred in allowing lay testimony regarding the nonexistence of the medicalrecords and claimant was, thus, entitled to an inference that the records exist and show adiagnosis favorable to claimant that, along with the other medical evidence, established acausally related occupational disease. The Board thus returned the case to the calendar todetermine awards and also whether the current claim should be amended or a new claimestablished based upon nerve conduction studies performed on claimant that demonstratedbilateral ulnar neuropathy. The employer and the workers' compensation carrier (hereinaftercollectively referred to as the employer) appeal and we affirm.
Initially, we disagree with the employer that the Board erred in precluding the testimony ofthe employer's lay witness with regard to the existence of the plant medical records. Where anemployer, without excuse, fails repeatedly to present evidence as directed by the Board, it is anabuse of discretion for a WCLJ to grant an adjournment for the purpose of later submission ofsuch evidence (see 12 NYCRR 300.10 [b]; Matter of Slack v Livingston-WyomingARC, 294 AD2d 716, 717 [2002], lv dismissed 98 NY2d 727 [2002], appealdismissed 100 NY2d 591 [2003]; see also Matter of Cross v G.A. Hall, Inc., 24 AD3d 903, 904-905[2005]; Matter of Olistin vWellington, 3 AD3d 618, 619 [2004]). Here, despite repeated direction, the employerfailed to produce the medical records or evidence as to the lack of their existence. As such, wefind that the employer had ample opportunity to present evidence on the matter and failed to doso and, thus, the Board did not err in precluding the subsequent introduction of testimony(see Matter of Slack v Livingston-Wyoming ARC, 294 AD2d at 717). Likewise, we findthat it was within the Board's authority to draw an inference in favor of claimant based on theemployer's failure to produce the evidence as directed (see Matter of Pache v Aviation Volunteer Fire Co., 20 AD3d 731,733-734 [2005], lv denied 6 NY3d 705 [2006]; Matter of Muller v Frankenburg-RichCorp., 151 AD2d 833, 834 [1989]).
In any event, we find that the Board's determination that claimant sustained a work-relatedoccupational disease was supported by substantial evidence even without such negativeinference. Andrew Kane, claimant's treating physician, consistently and unequivocally opined,both in his reports and testimony, that claimant's condition was likely carpal tunnel syndrome orsevere arthritis which was due to her "very long history of long hours of typing" and that hecould find no evidence that her condition was caused by anything other than employment.Similarly, Elias Nicolas, an orthopedic surgeon who performed an independent medicalexamination on behalf of the employer, while not offering a definitive diagnosis, agreed thatclaimant had an industrial history that could cause carpal tunnel syndrome and, further, thatclaimant's condition was a result of the overuse of her hands. Thus, deferring to the Board'sauthority to resolve conflicting medical evidence, particularly on the issue of causation, we findthat its determination is supported by substantial evidence (see Matter of Banner v Anheuser-Busch Cos., Inc., 59 AD3d 759,760 [2009]; Matter of Williams vColgate Univ., 54 AD3d 1121, 1123 [2008]).
Lastly, we find that it was well within the Board's continuing jurisdiction to return claimant'scase to the trial calendar for full development of the issue of whether she may amend [*3]her claim or establish a new claim based upon the most recentdiagnosis of bilateral ulnar neuropathy (see Workers' Compensation Law § 123;Matter of Dallas v ConsolidatedEdison, 27 AD3d 907, 908 [2006]; Matter of Naylon v Erie County Highway Dept., 14 AD3d 932,932-933 [2005]).
Mercure, J.P., Lahtinen, Kane and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.