| Matter of Prescott v Town of Lake Luzerne |
| 2010 NY Slip Op 08833 [79 AD3d 1216] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Jeffrey T. Prescott, Respondent, v Town of Lake Luzerne, Appellant. Workers' Compensation Board,Respondent. |
—[*1] James Trauring & Associates, L.L.C., Schenectady (James A. Trauring of counsel), for Jeffrey T.Prescott, respondent. Andrew M. Cuomo, Attorney General, New York City (Estelle Kraushar of counsel), forWorkers' Compensation Board, respondent.
Stein, J. Appeals (1) from a decision and amended decision of the Workers' Compensation Board,filed December 30, 2008 and July 14, 2009, which, among other things, precluded the introduction ofan independent medical examination report as untimely, (2) from a decision of said Board, filed August13, 2009, which, among other things, ruled that claimant had sustained a work-related injury, (3) froma decision of said Board, filed December 3, 2009, which denied the employer's request for full Boardreview, and (4) from a decision of said Board, filed February 22, 2010, which, among other things,ruled that claimant's subsequent surgeries were causally related to the compensable accident.
On February 11, 2008, claimant fell as he was climbing down off a dump truck while in the courseof his employment with the Town of Lake Luzerne (hereinafter the employer). Claimant landed on hisright buttock and, experiencing significant pain and fearing that he had [*2]damaged his hip replacement,[FN1]was taken by ambulance to the emergency room. Although the initial diagnosis at the emergency roomwas hip pain, imaging studies showed no obvious loosening of the hardware related to the hipprosthesis or fracture in that area. However, due to increasing pain, surgery was performed on May 8,2008. During such surgery, an extensive amount of heterotopic bone surrounding claimant's hip wasdiscovered and removed. William O'Connor, the surgeon, opined that claimant suffered fromheterotopic ossification in his hip—a condition in which muscle turns to bone—which hadexisted, but was relatively untroubling, before the February 2008 fall. O'Connor further opined that thefall fractured the heterotopic ossification, resulting in the pain that claimant was experiencing. Severalmonths later, claimant developed an infection attributed to the May 2008 surgery, which required atwo-stage revision of his total hip replacement in November 2008 and February 2009.
Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) found the May2008 surgery to be causally related to claimant's fall at work. The WCLJ precluded the employer fromintroducing into evidence an independent medical exam (hereinafter IME) because it was not completedin a timely manner. The WCLJ also denied the employer's request to cross-examine certain treatingphysicians on the basis that their reports were self-evident and did not address the causal relationshipbetween claimant's fall and the injury. On appeal, the Workers' Compensation Board, in an amendeddecision, affirmed the decision of the WCLJ to preclude the IME as untimely and to prohibit thecross-examination of the physicians. Thereafter, the Board affirmed two subsequent determinations ofthe WCLJ finding that claimant had sustained a work-related injury to his hip and that the ossificationresection was causally related and properly authorized. The Board further determined, among otherthings, that claimant had not violated Workers' Compensation Law § 114-a and that medicalevidence supported the awards made to claimant through November 2008. The employer's applicationfor full Board review was subsequently denied. Finally, the Board affirmed the WCLJ's determinationthat the two-stage hip replacement revision surgeries were a consequence of the May 2008 surgeryand, accordingly, were causally related to the compensable injury. The employer now appeals.
The employer's first contention is that the IME was improperly precluded. We disagree. At aprehearing conference in April 2008, the WCLJ instructed the employer to submit an IME at or beforethe next hearing. Thereafter, in a written decision, the WCLJ noted that the Chair had transferred thecase to the expedited calendar.[FN2]The employer then arranged for an IME to take [*3]place on June 11,2008. On April 25, 2008, the WCLJ notified the parties that the next hearing was tentatively scheduledfor May 30, 2008. Thereafter, by notice filed on April 30, 2008, that date was confirmed. Despitehaving been notified that the date of the hearing was before the date on which the IME was scheduledto occur, there is no evidence in this record that the employer took any action either to reschedule theIME for an earlier date or to adjourn the hearing. Under these circumstances, we cannot say thatpreclusion of the IME was improper. We are also unpersuaded by the employer's argument that it wasdenied due process when it was precluded from questioning certain physicians regarding the causalrelationship between claimant's postaccident symptoms and the preexisting condition of his hip,inasmuch as the doctors in question had not treated claimant for his causally related injury, and noreports from them were on file at the time the record with regard to causation was closed (see generally Matter of McKenzie vUJA-FED, 47 AD3d 1181, 1181 [2008]).
The Board's determinations that claimant's injury was caused by his fall at work and that the initialsurgery was causally related to the fall are supported by substantial evidence in the record. Although theinitial accident report and compensation claim both indicate that claimant fell on his buttocks, theemergency room physician and O'Connor both testified that claimant informed them that he fell on hisright hip, and claimant testified that he fell on "[his] buttocks . . . right cheek." Moreover,O'Connor—who treated claimant before and after the accident and performed the first surgeryfollowing the accident—opined that the trauma claimant experienced in the fall fractured theheterotopic ossification in his hip, causing the sudden onset of pain and other symptoms that claimantexperienced. Although there was evidence to the contrary, giving proper deference to the Board'scredibility determinations in resolving conflicting medical opinions and evidence, we discern no basisupon which to disturb its determinations as to causation (see Matter of Kot v Beth Ameth Home Attendant Serv., 70 AD3d1114, 1115 [2010]; Matter of Hassan vFord Motor Co., 69 AD3d 1024, 1026 [2010]; Matter of Ciafone v Consolidated Edison of N.Y., 54 AD3d 1135,1135-1136 [2008]).
However, we find no support in the record for the Board's determination that claimant's initialsurgery was properly authorized. A claim for a surgical procedure costing in excess of $1,000 is notvalid and enforceable against the employer unless the procedure is authorized by the Board or theemployer (see Workers' Compensation Law § 13-a [5]). If the employer fails to issue awritten denial based upon a conflicting medical opinion within 30 days of a request for suchauthorization, the procedure is deemed to be authorized and the employer or the workers'compensation carrier is liable for payment therefor (see Workers' Compensation Law §13-a [5]; 12 NYCRR 325-1.4 [a]). Here, the employer contends that it is not obligated to pay the costof the initial surgery, because no request for authorization for such surgery was made. Notwithstandingclaimant's testimony that he was informed by O'Connor and/or his staff and by "Workmens comp" thatauthorization for the initial surgery had been denied, our review of the record reveals no C-4 report byO'Connor (as referenced in the Board's determination) or any other written evidence that a request forsuch authorization was actually made. Nor did O'Connor testify that he made a request therefor. Thus,the Board's determination is not supported by substantial evidence and must be reversed (see Matter of Lopez v Superflex, Ltd., 31AD3d 914, 914 [2006]).
On the other hand, we do find, contrary to the employer's argument, that the awards to claimantmade after November 11, 2008 were supported by substantial evidence. O'Connor testified that theinfection which required the two-stage revision of claimant's hip replacement was causally related to theMay 2008 surgery and, by extension, to the work-related accident. [*4]Although the employer's physician, Dominic Belmonte, concluded that theinfection was not causally related to the fall, this conclusion was apparently premised on his opinion thatthe initial condition and May 2008 surgery were not causally related to that accident. Even Belmonteopined that, if the initial surgery was determined to be compensable, the two-stage revision was as well.Accordingly, notwithstanding the existence of some contrary medical evidence, we perceive no basis todisturb the Board's determination that compensation was justified (see Matter of Williams v Colgate Univ., 54 AD3d 1121, 1123 [2008]).
The employer's remaining contentions have been reviewed and found to be unavailing.
Cardona, P.J., Mercure, Lahtinen and Garry, JJ., concur. Ordered that the decision filed August13, 2009 is modified, without costs, by reversing so much thereof as determined that the May 2008surgery was authorized; matter remitted to the Workers' Compensation Board for further proceedingsnot inconsistent with this Court's decision; and, as so modified, affirmed. Ordered that the decisions andamended decision filed December 30, 2008, July 14, 2009, December 3, 2009 and February 22,2010 are affirmed, without costs.
Footnote 1: Claimant had two prior hipreplacements—one in 1991 and one in 2006—neither of which was work related.
Footnote 2: The issue of the propriety of thetransfer to the expedited calendar is not preserved for our review as the employer did not raise thisspecific issue to the Board following the WCLJ's substantive decisions (see Matter of Middleton vCoxsackie Correctional Facility, 38 NY2d 130, 132-133 [1975]; Matter of Finchum v Colaiacomo, 55 AD3d1084, 1085 [2008]). Nor has any evidence been offered to indicate that the Chair abused hisdiscretion in transferring the case to the expedited calendar (see Workers' Compensation Law§ 25 [3] [d]; 12 NYCRR 300.34 [b]).