Matter of Sparkes v. Holy Family Church ( 2015 )


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  •                           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'
    -2-                519430
    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]).
    -3-                  519430
    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
    

Document Info

Docket Number: 519430

Judges: Lynch

Filed Date: 12/3/2015

Precedential Status: Precedential

Modified Date: 11/1/2024