Claim of Cullen v. City of White Plains
In the Matter of the Claim of Kevin Cullen v. City of White Plains, Workers' Compensation Board
Full Opinion (html_with_citations)
Appeal from a decision of the Workersâ Compensation Board, filed September 11, 2006, which ruled that claimant had a 50% schedule loss of use of his right leg.
Claimant injured his right knee in a work-related accident in 1996. This injury required immediate surgery as well as follow-up surgeries in 1997 and 2000. In 2001, both parties submitted medical reports concerning schedule loss of claimantâs right leg, with claimantâs physician estimating a 75% schedule loss and the employerâs physician finding a 20% schedule loss. Thereafter, the parties stipulated to a 35% schedule loss, which was approved by a Workersâ Compensation Law Judge (hereinafter WCLJ) in July 2001.
Subsequently, claimant required further treatment and partial knee replacement surgery was performed in November 2002. At hearings before the WCLJ, claimantâs medical expert testified that the partial knee replacement surgery had resulted in a 50% schedule loss of use of claimantâs right leg, while the employerâs expert opined that claimantâs schedule loss remained at the 20% level he had previously determined in 2001. The WCLJ credited claimantâs expert and concluded that, following the partial knee replacement, claimant suffered from a 50% schedule loss of the use of his right leg. The Workersâ Compensation Board affirmed the WCLJâs decision, prompting this appeal.
It is well settled that resolution of conflicting medical opinions is within the Boardâs discretion (see Matter of Raffiani v Allied Sys., Ltd., 27 AD3d 983, 984 [2006]; Matter of Robinson v New Venture Gear, 9 AD3d 571, 572-573 [2004]). Furthermore, â[s]o long as the Boardâs determination is supported by substantial evidence it will be upheldâ (Matter of Gilman v Champlain Val. Physicians Hosp., 23 AD3d 860, 861 [2005]; see Matter of Lopez v Superflex, Ltd., 31 AD3d 914, 914 [2006]). Here, while the Boardâs medical guidelines do not specifically address the impact of a partial knee replacement on schedule loss, claimantâs expert found that the partial knee replacementâwhich included bone lossâand instability of the knee joint, which developed after the stipulation, decreased claimantâs range of motion and resulted in a 50% schedule loss of use of his right leg. The employerâs expert offered a contrary opinion to the effect that claimantâs partial knee replacement had no effect on schedule loss. As the Board was free to credit claimantâs expert opinion over that of the employerâs expert, and as we find that this determination was supported by substantial evidence, we affirm (see Matter of Ogden v PCA Intl., 26 AD3d 625, 625-626 [2006]).
The remaining contention by the employer that the Board ignored the issue of apportionment regarding a prior injury to
Cardona, P.J., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.