Matter of Sparkes v. Holy Family Church ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 3, 2015 519430
________________________________
In the Matter of the Claim of
KAREN SPARKES,
Respondent,
v
HOLY FAMILY CHURCH, MEMORANDUM AND ORDER
Appellant.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: October 14, 2015
Before: Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.
__________
Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer
Jr. of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Workers' Compensation Board,
respondent.
__________
Lynch, J.
Appeals (1) from a decision of the Workers' Compensation
Board, filed September 26, 2013, which ruled that claimant's
right hip condition was causally related to her established
claim, and (2) from a decision of said Board, filed March 4,
2014, which denied the employer's application for reconsideration
and/or full Board review.
In April 2008, claimant, a school teacher, suffered a work-
related injury to her right hip and was awarded workers'
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compensation benefits. She returned to work shortly thereafter
and continued medical treatment until June 2008. Claimant sought
medical treatment again in January 2012, complaining of
persistent pain in her right hip. She thereafter filed a claim
for medical treatment causally related to the 2008 injury.
Following hearings, a Workers' Compensation Law Judge
(hereinafter WCLJ) found that claimant's medical treatment was
causally related to her established claim. Upon review, the
Workers' Compensation Board affirmed. The employer's subsequent
request for reconsideration and/or full Board review was denied
and these appeals ensued.
We agree with the employer that the Board erred in finding
that the deposition testimony of Daniel Carr, the employer's
medical expert, was inadmissible. The WCLJ had directed the
parties to submit deposition testimony of both Carr and Stephen
Bogosian, claimant's treating physician (see Workers'
Compensation Law §§ 121, 142 [3] [b]). Claimant's counsel failed
to appear at Carr's deposition on its scheduled date and the
employer's counsel proceeded with the deposition. In
correspondence to the Board shortly thereafter, claimant's
counsel waived the right to cross-examine Carr and raised no
objection. Insofar as either party may present witnesses in
compensation proceedings (see Matter of Emanatian v Saratoga
Springs Cent. School Dist., 8 AD3d 773, 774 [2004]; 110 NY Jur
2d, Workers' Compensation § 662), we find no support for the
Board's conclusion that Carr's deposition testimony was
inadmissible. That said, the WCLJ expressly considered the
testimony of both Bogosian and Carr and found Bogosian's
testimony establishing a causal relationship between claimant's
2008 hip injury and her continuing symptoms more convincing.
Notwithstanding the Board's erroneous assessment as to the
admissibility of Carr's deposition testimony, the Board reviewed
Carr's opinion in its decision and expressly adopted the findings
of the WCLJ, noting that the WCLJ found Bogosian to be "more
credible." Since the weight to be accorded conflicting medical
opinions falls within the province of the Board, we conclude that
the Board's decision is supported by substantial evidence and
should be affirmed (see Matter of Camby v System Frgt., Inc., 105
AD3d 1237, 1238 [2013]).
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Nor do we perceive any due process violation, as the
employer claims, arising out of the fact that its application for
reconsideration and/or full Board review was denied by the same
three Board members who issued the September 26, 2013 Board
decision. An application for full Board review must be
considered by at least three memebers and may not be decided by
the chair alone (see Workers' Compensation Law §§ 23, 142 [2];
Matter of Scalo v C.D. Perry & Sons, Inc., 112 AD3d 1077 [2013]).
There is no requirement that the three members must be different
than the members who issued the underlying decision.
Lahtinen, J.P., McCarthy and Devine, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court