Opinion
526569
11-15-2018
In the Matter of the Claim of Gregory MOLETTE, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent. Workers' Compensation Board, Respondent.
Geoffrey Schotter, New York City, for appellant. Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for New York City Transit Authority, respondent.
Geoffrey Schotter, New York City, for appellant.
Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for New York City Transit Authority, respondent.
Before: Lynch, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Rumsey, J.
Appeal from a decision of the Workers' Compensation Board, filed June 15, 2017, which ruled that claimant did not suffer a consequential injury to his neck.
In 2011, while working for the New York City Transit Authority, claimant tripped in a pothole and fell, thereby sustaining an injury to his left shoulder. The Transit Authority did not dispute the left shoulder claim and paid claimant his full wages during his disability. The claim was later amended to include claimant's consequential right shoulder injury.
In 2016, claimant sought to amend the claim to include a consequential neck injury. Following an examination by an independent medical examiner and a hearing, the Workers' Compensation Law Judge denied claimant's application to amend, finding that there was no causal relationship for a consequential neck injury. Upon review, the Workers' Compensation Board affirmed, and claimant appeals.
We affirm. Whether claimant's neck injury consequentially arose from the left shoulder injury that he sustained in the 2011 work-related accident was a factual issue for the Board to resolve, and its determination will not be disturbed so long as it is supported by substantial evidence (see Matter of Schmerler v. Longwood Sch. Dist., 163 A.D.3d 1373, 1374, 81 N.Y.S.3d 669 [2018] ). Moreover, the Board has the exclusive province to resolve conflicting medical opinions (see id. ).
Claimant's treating chiropractor, Xerxes Oshidar, opined that claimant's neck injury is consequentially related to the left shoulder injury. Oshidar explained that, due to claimant's weakened shoulder muscles, the muscles that connect the neck and the shoulder have been "overutilized," thereby altering the "biomechanics of [his] neck" and causing pain. In contrast, Julio Westerband, a medical doctor who conducted an independent medical examination of claimant, opined that there was no evidence of the pathology of his neck injury. Westerband noted that there was an "[o]bvious attempt to mislead the exam" and that the statements contained in Oshidar's report are "pure pseudoscience speculation." According proper deference to the Board's resolution of conflicting medical evidence and credibility determinations, we find the Board's determination to be supported by substantial evidence (see Matter of Johnson v. Adams & Assoc., 140 A.D.3d 1552, 1553, 34 N.Y.S.3d 709 [2016] ; Matter of Pearson v. Bestcare, 48 A.D.3d 862, 851 N.Y.S.2d 288 [2008], lv denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 [2008], cert denied 557 U.S. 907, 129 S.Ct. 2796, 174 L.Ed.2d 297 [2009] ; Matter of Jones v. New York State Dept. of Correction, 35 A.D.3d 1025, 1026, 825 N.Y.S.2d 316 [2006] ).
Lynch, J.P., Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the decision is affirmed, without costs.