| Matter of Krietsch v Northport-East Northport UFSD |
| 2014 NY Slip Op 02636 [116 AD3d 1255] |
| April 17, 2014 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Christopher A. Krietsch,Respondent, v Northport-East Northport UFSD et al., Appellants. Workers'Compensation Board, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel),for Workers' Compensation Board, respondent.
Peters, P.J. Appeals (1) from a decision of the Workers' Compensation Board, filedNovember 1, 2011, which, among other things, ruled that decedent's back surgery wascausally related to the compensable accident, and (2) from a decision of said Board, filedMarch 30, 2012, which denied a request by the employer and its third-party administratorfor reconsideration and/or full Board review.
Kathryn Krietsch (hereinafter decedent) suffered from severe scoliosis and, sincechildhood, had fixation rods surgically installed to stabilize her spine.[FN1]In 2008, she fell down a flight of stairs while working and suffered back injuries. Thefixation rods appeared to be intact [*2]in X rays takenimmediately after the accident; however, subsequent X rays taken eight months latershowed that one of the rods had broken. Decedent thereafter requested authorizationfrom the Workers' Compensation Board for surgery to remove the broken rod and takeother steps to restore spinal stability. A Workers' Compensation Law Judge found thesurgery to be unrelated to the work accident but, upon review, the Workers'Compensation Board disagreed. The self-insured employer and its third-partyadministrator appeal from that decision, as well as the Board's subsequent rejection of theemployer's application for reconsideration and/or full Board review.[FN2]
The employer and its third-party administrator initially argue that the Board erred inconsidering claimant's application for Board review of the decision of the Workers'Compensation Law Judge because claimant failed to timely serve the employer with it(see 12 NYCRR 300.13 [a]; 300.15 [b]). The employer's attorney and itsthird-party administrator were provided timely notice of the application, however, andthe employer submitted opposition to it. Shortly thereafter, the employer was directlyserved by claimant (compare Matter of Vukel v New York Water & SewerMains, 94 NY2d 494, 497-498 [2000]). Given these circumstances, we cannot saythat the Board abused its discretion in overlooking the irregularities in service andconsidering claimant's application for review (see 12 NYCRR 300.30; Matterof Gulitz v International Bus. Machs. Corp., 130 AD2d 874, 875 [1987]).
Turning to the merits, "[w]e will uphold the Board's determination of causalrelationship if it is supported by substantial evidence" (Matter of Mallette v Flattery's,111 AD3d 989, 990 [2013]). Here, the orthopedic surgeon who performed therequested back operation opined that decedent's work accident caused a loss of stabilityin her spine that required surgery to correct. The surgeon further testified that the loss ofspinal stability occasioned by the work accident led to spinal movement that would haveeventually damaged the fixation rods, even if they did not break during the accidentitself. The Board credited the surgeon's testimony which, despite medical evidence to thecontrary, provided substantial evidence for finding a causal link between the workaccident and subsequent back surgery (see Matter of Prescott v Town of Lake Luzerne, 79 AD3d1216, 1218-1219 [2010]). Inasmuch as "credibility determinations and the resolutionof conflicting evidence are within the exclusive province of the Board," we may notaccept the employer's invitation to independently assess the medical evidence before theBoard (Matter of Ward vGeneral Utils., 100 AD3d 1113, 1113 [2012]; see Workers'Compensation Law § 20 [1]).
The remaining contention of the employer and its third-party administrator has beenconsidered and found to be without merit.
Stein, Rose and Egan Jr., JJ., concur. Ordered that the decisions are affirmed, withoutcosts.
Footnote 1: Decedent passed awayduring the pendency of the present workers' compensation claim. A Workers'Compensation Law Judge noted her death and found that claimant, her surviving spouse,was the sole party in interest.
Footnote 2: The employer and itsthird-party administrator advance no arguments in their brief regarding the Board's denialof reconsideration and/or full Board review and, accordingly, we deem their appeal fromthat decision to be abandoned (see Matter of Mangroo v Paramount Brands, 101 AD3d1299, 1299-1300 [2012]).