Matter of Joseph Raub v Cutler Hammer

Matter of Raub v Cutler Hammer 2003 NY Slip Op 18320 [1 AD3d 785] November 13, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of the Claim of Joseph Raub, Respondent,
v
Cutler Hammer, Inc., et al., Appellants. Workers' Compensation Board, Respondent.

— Spain, J. Appeal from a decision of the Workers' Compensation Board, filed September 17, 2002, which ruled that claimant sustained a compensable injury and awarded workers' compensation disability benefits.

Claimant worked for the employer as a laborer for over 30 years. He stopped working in December 1997, having been incapacitated, at least in part, by a back injury which he attributed to the bending and heavy lifting required by his employment. In the decision under review, the Workers' Compensation Board affirmed the determination of a Workers' Compensation Law Judge, finding that claimant had sustained a moderate, permanent partial disability that was 50% attributable to his employment and awarding workers' compensation disability benefits.

The employer and its workers' compensation carrier appeal, contending that the Board's determination is not supported by substantial evidence. We disagree. Based upon his physical examination of claimant and a review of his medical history, including the results of an MRI, claimant's physician testified that he suffered from degenerative disk disease and disk bulging. He stated that claimant's lumbar spine had lost approximately 50% of its mobility in its "forward flex, extension, rotation and lateral bending." The doctor concluded that claimant's employment, which required him to perform repetitive bending and heavy lifting, had contributed "substantially to his present condition." Even taking into account claimant's unrelated foot maladies, which had required repeated surgery, his physician opined that claimant's employment was a 50% contributing factor to his disability.

Although the physician who examined claimant for the carrier did not concur that his back condition was causally related to his employment, it is well settled that it lies within the Board's discretionary power to resolve conflicting medical evidence on the issue of causation (see Matter of Ritton v AT&T—New York, 298 AD2d 821, 822 [2002]; Matter of Hughes v Indian Val. Indus., 290 AD2d 871, 872 [2002]). As substantial evidence in the form of the testimony given by claimant's physician supports the Board's decision, it will not be disturbed (see Matter of Pulcastro v N & S Supply Co., 270 AD2d 737, 738-739 [2000]).

Mercure, J.P., Peters, Carpinello and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.