| Matter of Maricle v Crouse Hinds |
| 2009 NY Slip Op 08734 [67 AD3d 1284] |
| November 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kevin Maricle, Respondent, v CrouseHinds et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed July 24, 2008,which ruled that claimant had exacerbated a prior compensable injury and awarded workers'compensation benefits.
Claimant, a tool and model maker, sustained a work-related back injury in 2001, for whichhe intermittently missed time from work and received workers' compensation benefits. In 2007,claimant again missed work and required medical treatment due to back pain, and theself-insured employer and its third-party administrator (hereinafter collectively referred to as theemployer) alleged that the pain was unrelated to the 2001 injury. Following hearings, a Workers'Compensation Law Judge determined that claimant had not suffered a new injury and awardedbenefits. The Workers' Compensation Board agreed, and the employer now appeals.
With back injuries, "there is the ever-present danger of recurrence and the question thenarises as to whether the subsequent incident was a new accident, an aggravation or. . . an [*2]incident associated with the primaryinjury" (Matter of Hogan v Weldmaster Co., 11 AD2d 557, 557 [1960]). We will notinterfere with the Board's resolution of that issue if substantial evidence supports it, even ifevidence in the record could justify a different conclusion (see Matter of Baer v Eden ParkNursing Home, 51 AD3d 1344, 1344-1345 [2008]; Matter of Lomuscio v MetropolitanSuburban Bus Auth., 290 AD2d 828, 829 [2002]; Matter of Britton v Ruberoid Co.,12 AD2d 566, 567 [1960]). Here, claimant's bout of back pain in 2007 was not triggered by anywork-related activity, but two of his treating physicians opined that the pain was nevertheless anaggravation of the 2001 injury. A physician who conducted an independent medical examinationof claimant, David Carr, disagreed and stated that the pain arose from unrelated degenerativedisc disease. One of claimant's physicians agreed with Carr that claimant had degenerative discdisease, but opined that the 2001 injury was responsible for making that condition symptomatic.Indeed, even Carr admitted that degenerative disc problems were often asymptomatic and thatflare-ups of claimant's pain were not necessarily related to what he was doing at the time. Carr'sdiffering conclusion was based upon his opinion that claimant suffered a back strain in 2001which would have resolved in six or eight weeks and could not be the cause of his pain in 2007.The employer, however, previously conceded that the effects of the 2001 accident persisted longafter that time (see Matter of Imbriani v Berkar Knitting Mills, 277 AD2d 727, 730[2000]). As the Board was free to resolve the conflicting medical testimony in claimant's favor,substantial evidence supports its determination.
We have considered the employer's remaining arguments, including its contention that theBoard applied the incorrect standard of review, and find them to be without merit (see Matterof Webb v Cooper Crouse Hinds Co., 62 AD3d 57, 59 [2009]).
Peters, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the decision isaffirmed, without costs.