Third Department Decision- 11-14-13

In Matter of Pengal, the claimant appealed the denial of an accident arising in and out of the course of employment.

On July 29, 2008, claimant, a truck driver, suffered a stroke while at work and thereafter applied for workers compensation benefits. Following a hearing, a Workers Compensation Law Judge determined that there was no causal relationship between claimants stroke and his employment and denied the claim. That determination was upheld by the Workers Compensation Board and the claimant appealed.

The Court stated inasmuch as it is undisputed that claimants stroke occurred while he was at work, he was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see Workers Compensation Law § 21; Matter of Browne v New York City Tr. Auth., 66 AD3d 1290, 1290 [2009]). The employer, however, may rebut that presumption with substantial evidence to the contrary (see Matter of Richman v NYS Unified Ct. Sys., 91 AD3d 1014, 1015 [2012], lv denied 19 NY3d 811 [2012]). Here, the employers medical expert opined that claimants stroke was not related to his employment, but was directly related to certain preexisting conditions, including cerebral vascular disease, hypertension, diabetes, hypercholesterolemia and a prior transient ischemic attack, which combined to put claimant “at extreme risk for a stroke.” Claimants medical expert, although unaware of certain of claimants preexisting conditions that he testified may be predisposing factors for a stroke, concluded that claimants stroke was caused by job related exertion and fatigue. Claimant testified that he had filled out some paperwork and began driving his route, and had not made it to his first delivery stop before he suffered the stroke and was taken to the hospital. Claimants hospital records reflect that he informed heath providers there that his left arm felt a little numb and somewhat weak when he woke up that morning and that he had difficulty swallowing prior to reporting to work. Inasmuch as the Board is vested with the authority to credit the opinion of one medical expert over another (see Matter of Eccles v Truck-Lite, Inc., 92 AD3d 1175, 1175 [2012]), its determination that there was no causal relationship between claimants stroke and his employment is supported by substantial evidence and will not be disturbed.

In Matter of Hinovic, a pro se claimant/appellant filed an appeal to a direction by a law judge which ruled that payment of workers compensation benefits to claimant continue at a tentative rate.

Claimant appealed from a decision of the Workers Compensation Board directing that she continue to receive benefits at a tentative rate, reflecting that she suffers from a partial disability, pending the outcome of efforts to reach a settlement pursuant to Workers Compensation Law § 32. She did not appeal from that decision, however, until almost two months after it was filed. In the absence of any indication that a lack of appropriate notice of the Boards decision caused that delay, claimants appeal is untimely and must be dismissed (see Workers Compensation Law § 23; Matter of McHugh v Daily Freeman, 61 AD3d 1127, 1128 [2009]; Matter of Stabak v ISS Intl., 248 AD2d 814, 814 [1998], lv dismissed and denied 92 NY2d 891 [1998]).

In Matter of Caezza, the carrier appealed a finding that the claimant had a permanent total disability. Claimant, a hospital unit technician, suffered a back injury while moving a patient in 2002 and successfully applied for workers compensation benefits. Her claim was subsequently amended to include right knee and hip injuries, cauda equinea syndrome and incontinence. The Workers Compensation Board ultimately amended the claim to include a consequential left knee injury and found that claimant had a permanent total disability.

We initially reject the employers arguments that the claim alleging a left knee injury was time-barred. The two-year limitations period set forth in Workers Compensation Law § 28 does not bar the amendment of a timely-filed claim to include a consequential injury (see Matter of Zucker v Port Auth. of N.Y. & N.J., 57 AD3d 1249, 1251 [2008]; Matter of Skippon v T.M. Kenneys Inc., 296 AD2d 634, 635 [2002], lv denied 99 NY2d 502 [2002]). The record evidence here indicated that claimant experienced pain in both knees soon after the accident occurred, but that her knee problems were exacerbated as a result of frequent falls related to her back condition. Further, claimants treating orthopedist opined that her left knee problems were caused by her efforts to ambulate as limited by her right knee and back injuries. Thus, substantial evidence supports the Boards determination that the left knee injury was a consequence of her original injuries (see Matter of Scofield v City of Beacon Police Dept., 290 AD2d 845, 846 [2002]; Matter of Petillo v Wyckoff Hgts. Hosp., 288 AD2d 515, 516 [2001]).

The Court also found that substantial evidence similarly supports the Boards determination that claimant had suffered a permanent total disability. Conflicting medical evidence was presented as to the extent of claimants disability, but the Board was free to credit the testimony of claimants treating physician, orthopedist and orthopedic surgeon, all of whom opined that she is totally disabled and unable to engage in any employment (see Matter of VanDermark v Frontier Ins. Co., 60 AD3d 1171, 1172 [2009]). The doctors further explained their reliance upon the workers compensation guidelines in rendering those opinions which, in any event, are nothing more than useful criteria for the Board (see Matter of Eaton v Dellapenna Assoc., 91 AD3d 1008, 1009 [2012]; Matter of VanDermark v Frontier Ins. Co., 60 AD3d at 1172).

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