                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520631
________________________________

In the Matter of the Claim of
   STEWART LICHTEN,
                    Appellant,
      v

NEW YORK CITY TRANSIT                       MEMORANDUM AND ORDER
   AUTHORITY,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 11, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


     Geoffery Schotter, New York City, for appellant.

      Jones Jones, LLC, New York City (Carmel Corcoran of
counsel), for New York City Transit Authority, respondent.

                             __________


McCarthy, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed May 8, 2014, which, among other things, ruled that claimant
did not sustain a causally related disability to his bilateral
knees.

      Claimant worked as a bus driver, but stopped working in
January 2010 after he suffered a heart attack. In March 2011, he
filed a claim for workers' compensation benefits based upon an
occupational disease stemming from repetitive stress injuries to
his legs, including his hips, knees and feet, caused by his many
                              -2-                520631

years of working as a bus driver. The self-insured employer
controverted the claim and hearings were conducted before a
Workers' Compensation Law Judge (hereinafter WCLJ). At the
conclusion of the hearings and based upon the medical evidence
presented, the WCLJ established the case for an occupational
disease to claimant's bilateral hips, but disallowed the claim
with respect to his bilateral knees, and made schedule loss of
use awards. On appeal, the Workers' Compensation Board, among
other things, upheld that portion of the WCLJ's decision
disallowing the claim relating to claimant's bilateral knees.
Claimant now appeals.

      Initially, in order to be entitled to workers' compensation
benefits based upon an occupational disease, "'the claimant must
establish a recognizable link between his or her condition and a
distinctive feature of his or her employment'" (Matter of
Satalino v Dan's Supreme Supermarket, 91 AD3d 1019, 1019 [2012],
quoting Matter of Ferraina v Ontario Honda, 32 AD3d 643, 644
[2006]). Moreover, where medical proof is relied upon to
demonstrate the existence of a causal relationship, it must
signify a probability of the underlying cause that is supported
by a rational basis and not be based upon a general expression of
possibility (see Matter of Phelan v Bethpage State Park, 126 AD3d
1276, 1277 [2015], lv denied 25 NY3d 911 [2015]; Matter of
Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014 [2014]).

      Here, claimant's occupational disease claim is premised
upon the repetitive stress injuries that he sustained while using
his legs to operate his bus over many years. Three medical
professionals testified before the WCLJ with respect to this
issue. A board-certified rheumatologist had treated claimant
while he was still employed and for some time thereafter. When
asked to identify what complaints claimant made during this time
period, the doctor explained that claimant complained of hip and
foot pain, and that those continued to be claimant's complaints
through 2012, approximately two years after he had ceased driving
a bus. The rheumatologist gave no opinion regarding claimant's
knees.

      Claimant's treating orthopedist also testified. He stated
that, after treating claimant fairly regularly during 2011, he
                              -3-                520631

diagnosed claimant with, among other things, degenerative
arthritis of the left and right knees. He opined that these
conditions were causally related to claimant's work activities,
explaining that the repetitive use of his legs to apply the
brakes and gas were stressors that could worsen the development
of these conditions over time. The orthopedist who conducted an
independent medical examination of claimant on behalf of the
self-insured employer opined that claimant's osteoarthritic
conditions were caused by a preexisting condition. He
acknowledged the possibility that claimant's use of his right leg
in applying the brake could have potentially aggravated an
existing condition in claimant's right knee, but he did not
render an opinion regarding the likelihood that this, in fact,
had been the case with claimant.

      Accordingly, only claimant's treating orthopedist opined
that driving a bus had, in fact, aggravated claimant's existing
knee condition. The fact that neither of the remaining experts
took a contrary position – or took a position on the matter at
all – did not mandate that the Board credit the opinion of
claimant's treating orthopedist. The Board could reasonably
conclude from the rheumatologist's testimony that, at the time
that claimant was employed and for some time thereafter, he was
not experiencing knee problems. The Board was equally entitled
to discredit claimant's treating orthopedist's opinion that,
despite this absence of knee complaints, claimant had been
aggravating an existing knee condition while he was driving a bus
prior to January 2010. Such a credibility determination is
within the Board's authority (see Matter of Tangorre v Tech Home
Elec., LLC, 124 AD3d 1183, 1184 [2015]; Matter of Ward v General
Utils., 100 AD3d 1113, 1113 [2012]). Accordingly, we find that
substantial evidence supports the Board's decision.

     Egan Jr., Lynch and Clark, JJ., concur.
                        -4-                  520631

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
