State of New York Supreme Court, Appellate Division Third Judicial Department
January 5, 2012
IN THE MATTER OF THE CLAIM OF RICARDO FRANCO, APPELLANT,
PECKHAM INDUSTRIES, INC., ET AL., RESPONDENTS. WORKERS' COMPENSATION BOARD, RESPONDENT.
Appeal from a decision of the Workers' Compensation Board, filed April 14, 2010, which ruled that claimant had no further causally related disability.
The opinion of the court was delivered by: Kavanagh, J.
MEMORANDUM AND ORDER
Calendar Date: November 16, 2011
Before: Peters, J.P., Rose, Kavanagh, McCarthy and Garry, JJ.
Claimant injured his back while raking blacktop for the employer in April 2004 and was awarded workers' compensation benefits. In September 2004, claimant received epidural steroid injections to relieve his back pain. In October 2004, claimant was hospitalized and treated for tuberculosis myelitis. Claimant sought to amend his workers' compensation claim to include tuberculosis myelitis as a consequential injury. After referring the matter to an impartial specialist, the Workers' Compensation Board concluded that there was insufficient evidence of a causal relationship to support the amendment of claimant's case to include tuberculosis myelitis. Upon further proceedings to determine whether claimant had any disability related to his established work-related injury subsequent to June 9, 2006, the Workers' Compensation Law Judge concluded that he did not. The Board modified the Workers' Compensation Law Judge decision with regard to certain evidentiary rulings and otherwise affirmed. Claimant now appeals.
We affirm. Inasmuch as claimant did not appeal from the Board's determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved (see Matter of Beers v Jump Start Advanced Academics, 57 AD3d 1026, 1028 ; Matter of Cullen v City of White Plains, 45 AD3d 1167, 1168-1169 ). Turning to the issue of whether the Board's determination that claimant has no further disability due to his work-related back injury is supported by substantial evidence, we recognize the Board's authority to resolve differing medical evidence and we defer to the Board's credibility determinations (see Matter of Banner v Anheuser-Busch Cos., Inc., 59 AD3d 759, 760 ; Matter of Dimitriadis v One Source, 53 AD3d 704, 705-706 ; Matter of Cullen v City of White Plains, 45 AD3d at 1168). The Board found the opinions of John Mitamurai, an orthopedist, and Sandra Caniciu, a neurologist, more credible than the other medical experts. Mitamurai and Caniciu, who both examined and treated claimant, opined that claimant's present disability is not related to his workplace injury, but is solely due to the subsequent, unrelated tuberculosis myeletis condition. Accordingly, we find that the Board's determination is supported by substantial evidence and we will not disturb it.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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