Opinion
May 11, 1989
Appeal from the Workers' Compensation Board.
Claimant sustained a compensable back injury on October 5, 1979. On August 26, 1981, he reinjured his back in a noncompensable accident requiring surgical intervention. The Workers' Compensation Board found that the accident of August 26, 1981 aggravated claimant's previous compensable injury and constituted a new accident. Accordingly, it apportioned liability equally between the two accidents. Claimant appeals, contending that the decision is against the weight of the evidence. We disagree.
The Board, in the exercise of its fact-finding power, may select which portion of a medical expert's testimony it deems persuasive and reject any other part (see, Matter of Forte v Larchment Manor Park Socy., 74 A.D.2d 664, lv denied 49 N.Y.2d 709). It is also up to the Board to determine the additional question of fact as to the apportionment of responsibility (see, Matter of Brooks v Ridgeway, 9 A.D.2d 795). Given these conclusions and based upon the record before us, the Board's decision should be affirmed.
Decision affirmed, with costs to claimant against the insurance carrier (see, 22 NYCRR 800.9 [d]). Mahoney, P.J., Kane Weiss, Levine and Harvey, JJ., concur.