Calendar Date: April 24, 2017
Geoffrey Schotter, New York City, for appellant.
Smit, O'Boyle & Weisman, Hauppauge (Theresa E.
Wolinski of counsel), for New York City Transit Authority,
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
April 1, 2016, which ruled that claimant did not sustain a
causally related disability to his knees.
a bus driver for 25 years who retired in 2011, applied for
workers' compensation benefits claiming that, as a result
of repetitive stress to his knees, he had sustained an
occupational disease. While claimant's treating physician
opined that his knee condition was causally related to his
an orthopedic surgeon who performed an independent medical
exam on claimant in 2012, concluded that it was not causally
related. Claimant subsequently underwent an MRI of each knee
that disclosed, among other things, possible meniscus tears,
degeneration and edema in both knees, ligament strain or
partial tear in the right knee, ligament strain in the left
knee, and a loose body abutting the tibial plateau bone in
the right knee. A second orthopedic surgeon, Carl Wilson,
thereafter conducted an independent medical exam of claimant
and concluded, based on the MRI results and medical records,
that his condition was not causally related. Following a
hearing, the Workers' Compensation Board credited the
testimony of Wilson that claimant's knee problems are not
work-related injuries, relying in part on the Board's
interpretation of the MRI results and Ferriter's early
finding of age-related arthritis in both knees. On appeal,
this Court reversed and remitted for further proceedings,
finding that the Board had inaccurately read the MRI results
and that it was unclear to what extent this impacted its
decision to credit Wilson's medical opinion (136 A.D.3d
1192, 1193 ). Upon further consideration of the entire
record on remittal, the Board again disallowed the claim,
finding Wilson's testimony of no causal relationship to
be credible. Claimant now appeals.
affirm. As an initial matter, "in order to be entitled
to workers' compensation benefits based upon an
occupational disease, the claimant must establish a
recognizable link between his or her condition and a
distinctive feature of his or her employment"
(Matter of Lichten v New York Tr. Auth., 132 A.D.3d
1219, 1219  [internal quotation marks and citations
omitted]; see Workers' Compensation Law § 2
). In disallowing the claim, the Board credited
Wilson's testimony, which was based upon his exam of
claimant and a review of his medical records, including the
MRI results for each knee. Wilson diagnosed claimant with
"bilateral knee strain with underlying degenerative
changes, " and concluded that his knee problems were not
causally related to his work activity but, rather, were due
to "wear and tear, osteoarthritis, and degenerative
changes" that were age-related. This opinion was based
upon, among other things, the fact that claimant had not
sustained an injury at work and that his knee condition would
not have resulted from repeatedly bending and straightening
that Wilson's medical opinion of no causal relationship
is, as required, based upon "a probability of the
underlying cause [of his knee condition] that is supported by
a rational basis" (Matter of Lichten v New York Tr.
Auth., 132 A.D.3d at 1219). It was within the
Board's exclusive province to credit the opinion of
Wilson over that of claimant's treating physician, who is
not an orthopedic surgeon and did not have the benefit of the
MRI results (see Matter of Johnson v Adams &
Assoc., 140 A.D.3d 1552, 1553 ). As the
Board's decision crediting Wilson's opinion of no
causally-related occupational disease is supported by
substantial evidence, it will not be disturbed, even if the
record contains a medical opinion and evidence that could
have supported a different result (see Matter of Jones v
Consolidated Edison Co. of N.Y., Inc., 130 A.D.3d 1106,
1107 ; Matter of Phelan v Bethpage State Park,
126 A.D.3d 1276, 1278 , lv denied 25 N.Y.3d
911 ; Matter of Cappelletti v Marcellus Cent. Sch.
Dist., 125 A.D.3d 1082, 1083 ).
contrary to claimant's contention, the Board's
decision is not contrary to this Court's remittal order
(136 A.D.3d at 1193). To that end, our remittal order was
based upon the Board's misreading of the MRI
results and did not preclude the Board from crediting and
relying upon Wilson's expert testimony and interpretation
of the MRI results.
Jr., Rose, Devine and Clark, JJ., concur.
that the decision is ...