Oberg v. Consol. Edison Co. of N.Y., Inc.

211 A.D.3d 1271

180 N.Y.S.3d 640

In the Matter of the Claim of Donald OBERG, Appellant,

v.CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Respondent.

Workers’ Compensation Board, Respondent.

534402

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 21, 2022

Decided and Entered: December 15, 2022

The Perecman Firm, PLLC, New York City (Edward Guldi of counsel), for appellant.

Cherry, Edson & Kelly, LLP, Melville (Ashley Pomes of counsel), for Consolidated Edison Company of New York, Inc., respondent.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from a decision of the Workers’ Compensation Board, filed October 8, 2021, which denied claimant's request to amend his claim to include bilateral shoulder injuries.

Claimant, an automobile mechanic, has an established claim for injuries to his neck as a result of a work-related motor vehicle accident in August 2020. Claimant also alleged bilateral shoulder injuries. Claimant was examined in October 2020 by Vito Loguidice, an orthopedic surgeon who prepared an independent medical examination report finding that claimant had a causally-related cervical sprain and that, although he had range of motion deficits in his shoulders, his shoulder pain originated in his neck and there were no causally-related shoulder injuries. Loguidice testified consistent with his report and concluded, based upon the examination, the surveillance video of the accident and the mechanism of injury, i.e., being struck on the driver's side by another vehicle, that his shoulder injuries were not consistent with or caused by the accident. Meanwhile, claimant's treating orthopedist, Joseph Giovinazzo, diagnosed him with cervical radiculopathy and bilateral rotator cuff labral tears. Giovinazzo later testified consistent with that finding, opining that claimant's injuries, including his bilateral shoulder injuries, were causally-related to the accident. Loguidice conducted a second examination of claimant in March 2021, again concluding, as relevant here, that his bilateral shoulder condition was not causally related to the accident.

A Workers’ Compensation Law Judge (hereinafter WCLJ) credited the opinion of Giovinazzo that claimant had sustained causally-related bilateral shoulder injuries, amended the claim to include bilateral shoulder injuries and made awards at the temporary partial disability rate. On administrative appeal, the Workers’ Compensation Board reviewed the medical evidence and testimony and the video of the accident, and credited the opinion of Loguidice that claimant's shoulder injuries were not causally related to the accident. As such, the Board rescinded the WCLJ's amendment of the claim to include bilateral shoulders. Claimant appeals.

"[T]he Board has the exclusive province to resolve conflicting medical opinions and to evaluate medical evidence before it, and its factual determinations on causal relationship will not be disturbed if supported by substantial evidence in the record" ( Matter of Sequino v. Sears Holdings , 206 A.D.3d 1408, 1410, 172 N.Y.S.3d 139 [3d Dept. 2022] [internal quotation marks and citation omitted]). To that end, the Board may "credit the opinion of one medical...