| Matter of Mallette v Flattery's |
| 2013 NY Slip Op 07224 [111 AD3d 989] |
| November 7, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Janina Mallette, Respondent,v Flattery's et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel),for Workers' Compensation Board, respondent.
Rose, J.P. Appeal from a decision of the Workers' Compensation Board, filedJanuary 20, 2012, which, among other things, ruled that claimant's need for artificial discreplacement surgery was causally related to the compensable accident.
In 2007, claimant began treating for lower back pain. She was diagnosed with a discherniation and thereafter had microdiscectomy surgery in 2008. When that did not relieveher back pain, her treating neurosurgeon, Ryan Den Haese, recommended an artificialdisc replacement procedure (hereinafter ADRP) in 2009. However, claimant's privatehealth insurance carrier did not approve the ADRP.
On March 26, 2010, claimant fell through a trapdoor at work and suffered furtherinjuries. Her claim for workers' compensation benefits was established for injuries to,among other things, her lower back. Den Haese thereafter requested authorization fromthe Workers' Compensation Board to perform the ADRP. Following hearings anddeposition testimony, a Workers' Compensation Law Judge (hereinafter WCLJ)concluded that the need for the ADRP was both due to a preexisting condition andcausally related to claimant's work accident. The [*2]WCLJ then found the employer and its workers'compensation carrier (hereinafter collectively referred to as the carrier) 50% liable for thesurgery. Upon review, the Board modified the WCLJ's determination by finding thecarrier solely liable for the cost of the ADRP, without prejudice to further considerationof apportionment after a finding of permanency has been made, but otherwise affirmed.The carrier appeals, arguing that claimant's need for the ADRP is not causally related toher accident.
We will uphold the Board's determination of causal relationship if it is supported bysubstantial evidence (see Matterof Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141, 1142 [2009];Matter of Howard v New York Times, 302 AD2d 698, 699 [2003], lvdismissed and denied 100 NY2d 531 [2003]). Here, the record reflects that, prior tothe accident, claimant was working full time in a physically demanding job withoutrestrictions, in spite of the fact that she had been treated for back pain for several yearsand Den Haese had recommended the ADRP. Following the accident, however,claimant's lower back pain worsened to the point where she could no longer work.Claimant's pain management physician, her chiropractor, the physician that conducted anindependent medical examination and Den Haese all opined that her preexistingcondition was aggravated by her fall and that, following her fall, she suffered from acausally-related total temporary disability. Accordingly, the Board's finding that theaccident at work aggravated claimant's preexisting condition and that the need for theADRP is causally related to the accident is supported by substantial evidence and will notbe disturbed (see Matter ofHargraves v Dormann Lib., 18 AD3d 1105, 1106 [2005]; Matter of Sidaris vBrookhaven Mem. Hosp., 271 AD2d 884, 885 [2000]).
Lahtinen, Spain and Garry, JJ., concur. Ordered that the decision is affirmed, withoutcosts.