| Matter of Turner v Jaquith Indus., Inc. |
| 2010 NY Slip Op 04485 [73 AD3d 1405] |
| May 27, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ruben Turner, Appellant, v JaquithIndustries, Inc., et. al., Respondents. Workers' Compensation Board,Respondent. |
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Mercure, J.P. Appeal from a decision of the Workers' Compensation Board, filed July 10,2008, which ruled that claimant had no further causally related disability.
Claimant, a machine operator, began experiencing respiratory problems after being exposedto toxic fumes in the course of his employment in July 1997. That incident required that he missthree weeks of work and resulted in an established workers' compensation claim involvingclaimant's lungs and airways. Following his return to work in August 1997, claimant sustainedno compensable lost time until the summer of 2006, when he was again exposed to fumes thatcaused him to have difficulty breathing. Claimant was subsequently diagnosed with asthma andchronic obstructive pulmonary disease, and he submitted a second claim for workers' [*2]compensation benefits. A Workers' Compensation Law Judgeultimately authorized awards encompassing the time period between February 16, 2007 and June8, 2007, but found that claimant did not suffer any causally related disability beyond the latterdate. The Workers' Compensation Board upheld that determination, prompting this appeal byclaimant.
We affirm. "[I]t is within the Board's discretion to determine witness credibility and resolveconflicting medical opinions" (Matter ofBentvena v City & Suburban, 57 AD3d 1028, 1028 [2008]). Here, claimant's physicianopined that claimant's exposure to fumes in 2006 exacerbated his existing lung disease, renderingclaimant totally disabled and unable to work. He likewise indicated that claimant's disability wasdirectly related to claimant's occupation.
In contrast, the workers' compensation carrier's examining physician testified that the 2006exposure was a temporary exacerbation of claimant's asthma. Specifically, based on acomparison of medical records compiled before and after claimant's 2006 exposure, thephysician testified that claimant's pulmonary function had returned to pre-exposure levels byJanuary 2007 and that claimant could return to work. Indeed, he opined that claimant'srespiratory problems were more likely the result of claimant's hepatitis C infection and smokinghabit. A third physician who examined claimant at the request of the Special Fund for ReopenedCases in June 2007 concluded that claimant did not suffer from any causally-related disability.Accordingly, inasmuch as the resolution of conflicting medical opinions is within the Board'sprovince and both of the latter opinions constitute substantial evidence supporting the Board'sdetermination, we decline to disturb it (see Matter of Banner v Anheuser-Busch Cos., Inc., 59 AD3d 759,760 [2009]; Matter of Darling vTransport Drivers, Inc., 35 AD3d 945, 946 [2006]).
Spain, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decision is affirmed,without costs.