| Matter of Altobelli v Allinger Temporary Servs., Inc. |
| 2010 NY Slip Op 00753 [70 AD3d 1083] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Rob Altobelli, Respondent, v AllingerTemporary Services, Inc., et al., Appellants, and Calvary Design Team, Inc., et al., Respondents.Workers' Compensation Board, Respondent. |
—[*1] Segar & Sciortino, Rochester (Jason D. Poselovich of counsel), for Rob Altobelli,respondent. Gielowski, Federice & Caligiuri, Buffalo (Joseph A. Caligiuri of counsel), for CalvaryDesign Team, Inc. and another, respondents. Andrew M. Cuomo, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
Peters, J.P. Appeal from a decision of the Workers' Compensation Board, filed October 9,2008, which ruled that claimant's workers' compensation award be apportioned equally to twowork-related incidents.[*2]
Claimant sustained a non-work-related back injury thatrequired that he undergo surgery in 1989. He subsequently became employed as a manuallaborer and worked without disability or restrictions until October 2001 when he reinjured hisback carrying drywall while working for Allinger Temporary Services, Inc. The incident led to asecond surgery and resulted in an established workers' compensation claim. Although hereturned to work after that surgery, claimant sustained another back injury—for which asecond workers' compensation claim was established—in May 2004 while employed byCalvary Design Team, Inc. In July 2005, claimant underwent a third back surgery afterexperiencing pain at home in March of that year.
Thereafter, hearings were held in regard to apportionment, and a Workers' CompensationLaw Judge concluded that claimant's awards should be apportioned 80% to the 2001 injury and20% to the 2004 injury. Upon review, the Workers' Compensation Board agreed with theassertion of Allinger and its workers' compensation carrier (hereinafter collectively referred to asthe employer) that apportionment should apply on an equal one-third basis to the 1989, 2001 and2004 injuries. Claimant's subsequent application for full Board review of that determination wasgranted, whereupon the Board rescinded its prior decision and apportioned the claims equallybetween the 2001 and 2004 work-related incidents. The employer appeals.[FN*]
We affirm. "Apportionment of a workers' compensation award presents a factual issue forresolution by the Board and its decision will be upheld so long as it is supported by substantialevidence" (Matter of Mandziara vLowe's Home Ctrs., 41 AD3d 1020, 1020-1021 [2007] [citations omitted]). The Boardis likewise empowered to resolve conflicts in medical evidence and to credit the testimony ofone expert over that of another (seeMatter of Moore v St. Peter's Hosp., 18 AD3d 1001, 1002 [2005]). In that regard,notwithstanding contrasting medical testimony, the Board relied on the opinion of AndreLefebvre, a board-certified orthopaedic surgeon who examined claimant in 2002 and 2006 andtestified that claimant's condition was equally attributable to his 1989, 2001 and 2004 injuries.
The Board determined, however, that apportionment to the non-work-related 1989 injurywas precluded as a matter of law because that injury did not render claimant disabled in the"compensation sense" (see Matter of Bruno v Kelly Temp Serv., 301 AD2d 730, 731[2003] [citations omitted]). Contrary to the employer's assertion, such a determination isconsistent with our holding in Matter of Miller v Congel-Palenscar, Inc. (236 AD2d 645[1997]), "in which we reversed the Board's apportionment finding only after discovering that ithad erred by failing to properly consider the claimant's prior compensable injury" (Matter of Peck v Village ofGouverneur, 15 AD3d 735, 736 [2005], lv denied 5 NY3d 707 [2005]; seeMatter of Johnson v Feinberg-Smith Assoc., 305 AD2d 826, 827-828 [2003]). Accordingly,because our review of the record reveals that between 1989 and 2001 claimant "was fullyemployed and able to effectively perform his . . . duties despite thenoncompensable preexisting condition" (Matter of Bruno v Kelly Temp Serv., 301 AD2dat 731), substantial evidence supports the Board's decision limiting apportionment to claimant'stwo work-related injuries (see generallyMatter of Peterson v Faculty Student Assn., 57 AD3d 1139, 1140-1141 [2008], lvdismissed 12 NY3d 777 [2009]).
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decision is affirmed,with costs to claimant.
Footnote *: Calvary and its workers'compensation carrier have submitted a brief in support of the employer's appeal, but haveabandoned their own appeal.