Calendar Date: November 14, 2017
Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer Jr. of
counsel), for appellants.
T. Schneiderman, Attorney General, New York City (Nina M. Sas
of counsel), for Workers' Compensation Board, respondent.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an amended decision of the Workers' Compensation
Board, filed April 6, 2016, which ruled, among other things,
that claimant suffers from a causally-related injury and
awarded workers' compensation benefits.
2010, while working for Jain Irrigation, Inc., claimant was
found to have suffered a work-related injury to the rotator
cuff in his right shoulder while lifting a heavy object, and
he was awarded workers' compensation benefits. The
rotator cuff was surgically repaired and he was thereafter
found to have a 35%
use of his right arm. In May 2014, claimant was working for a
different employer when he jarred his right shoulder swinging
a sledgehammer and felt pain radiating down his right arm.
Following hearings on whether to amend the 2010 claim, a
Workers' Compensation Law Judge found that claimant
suffered from ulnar neuritis in the right arm with right
cubital tunnel syndrome that was causally-related to the 2010
incident. On review, the Workers' Compensation Board, in
an amended decision, modified the Workers' Compensation
Law Judge's decision, finding that claimant had not
established that ulnar neuritis was causally-related to the
2010 incident, but otherwise affirmed and amended the 2010
claim to include right cubital tunnel syndrome. Jain
Irrigation and its workers' compensation carrier
(hereinafter collectively referred to as the employer) now
affirm. Initially, the employer argues, for the first time on
appeal, that ulnar neuritis and cubital tunnel syndrome are,
in fact, the same condition and, therefore, the Board could
not find a lack of proof of ulnar neuritis and also amend the
2010 claim to include cubital tunnel syndrome. The employer
did not raise this issue in the administrative proceedings
and did not seek full Board review and/or reconsideration of
the Board's decision. Accordingly, inasmuch as this issue
was not put before the Board, it is not properly before us on
appeal (see Matter of Xie v JP Morgan Chase, 150
A.D.3d 1360, 1362 ; Matter of Liberius v New York
City Health & Hosps. Corp., 129 A.D.3d 1170, 1171
). Although the employer requests that we take judicial
notice of the fact that the two conditions are synonymous,
there is evidence in the record that suggests that they are
separate afflictions. In the report of Marco Berard, an
orthopedic surgeon who examined claimant, he opined that
"at this point we cannot differentiate from right ulnar
neuritis and/or cubital tunnel syndrome" and that
"[t]here is no evidence here that there is any other
activity that will have caused right cubital tunnel syndrome
or right ulnar neuritis." Further, orthopedic surgeon D.
Peter Vaneenenaam, who performed the surgery on
claimant's shoulder, diagnosed claimant as suffering from
"[o]ngoing ulnar neuritis with cubital tunnel
syndrome." Although the employer cites to two websites
that indicate that the conditions are one and the same, this
appears to conflict
evidence in the record. Accordingly, we find that this issue
is not "capable of immediate and accurate determination
by resort to easily accessible sources of indisputable
accuracy" (People v Jones, 73 N.Y.2d 427, 431
 [internal quotation marks and citations omitted];
accord Hamilton v Miller, 23 N.Y.3d 592, 603 )
and, therefore, we decline the employer's request that we
take judicial notice thereof.
to the merits, "[t]he Board's determination will be
upheld if supported by substantial record evidence"
(Matter of Joyce v United Food & Commercial Workers
Local 342-50, 307 A.D.2d 552, 553 ; see Matter
of Johnson v Adams & Assoc., 140 A.D.3d 1552, 1553
). The Board credited Berard's 2015 report that
found that claimant's condition "is compatible for
right cubital tunnel syndrome" and is causally related
to the 2010 injury. Although the employer's medical
expert opined that claimant suffers from ulnar neuritis that
is causally related to the 2014 incident, according deference
to the Board's resolution of conflicting medical evidence
(see Matter of McKinney v United States Roofing
Corp., 150 A.D.3d 1377, 1378 ; Matter of
Stange v Angelica Textile Servs., Inc., 139 A.D.3d 1294,
1296 ), its determination to amend the 2010 claim to
include right cubital tunnel syndrome is supported by
substantial evidence and will not be disturbed.
P.J., Lynch, Clark and Aarons, JJ., concur.
that the amended decision is ...