                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   520210
________________________________

In the Matter of the Claim of
   GILBERT SAVAGE,
                    Respondent,
      v

AMERICAN HOME CARE SUPPLY, LLC,
   et al.,
                    Appellants,
      and                                   MEMORANDUM AND ORDER

SPECIAL DISABILITY FUND,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Law Office of John Wallace, Buffalo (Christina M. Hassler
of counsel), for appellants.

      Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for Special Disability Fund,
respondent.

                             __________


Lynch, J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 8, 2014, which ruled, among other things, that the
employer's workers' compensation carrier is not entitled to
reimbursement from the Special Disability Fund.
                              -2-                520210

      Claimant sustained work-related injuries to his lower back
in June 2003 and was awarded workers' compensation benefits.
Subsequently, the employer and its workers' compensation carrier
(hereinafter collectively referred to as the carrier) filed a
claim for reimbursement from the Special Disability Fund pursuant
to Workers' Compensation Law § 15 (8) (d). In July 2004, the
carrier and the Fund entered into a stipulation whereby they
agreed that Workers' Compensation Law § 15 (8) (d) applied to the
claim unless "total disability develop[ed] solely due to" the
June 2003 injury. In 2012, the carrier requested a hearing to
resolve the issue of apportionment, citing a September 2005
report of an independent medical examination (hereinafter IME).
Following the hearing, a Workers' Compensation Law Judge
determined that claimant suffered a permanent total disability
from the June 2003 injury and, thus, that the carrier was not
entitled to reimbursement. On appeal, the Workers' Compensation
Board affirmed. The carrier now appeals,1 and we affirm.

      To receive reimbursement from the Fund pursuant to Workers'
Compensation Law § 15 (8) (d), the carrier was required to
demonstrate that "claimant suffered from (1) a preexisting
permanent impairment that hindered job potential, (2) a
subsequent work-related injury, and (3) a permanent disability
caused by both conditions that is materially and substantially
greater than would have resulted from the work-related injury
alone" (Matter of Surianello v Consolidated Edison Co. of N.Y.,
Inc., 123 AD3d 1369, 1369-1371 [2014] [internal quotation marks
and citations omitted]; see Matter of Crane v Dalrymple Gravel &
Contr. Holding, 117 AD3d 1378, 1378-1379 [2014]). Here, the
record establishes that claimant suffered two prior work-related
injuries to his lower back – the first in 1975 and the second in


    1
        We note that the Board subsequently amended its original
decision. Inasmuch as the original and amended decisions are not
materially different and there is no claim of prejudice, we will
treat this appeal as having been taken from the amended decision
(see Matter of Bank v Village of Tuckahoe, 129 AD3d 1243, 1244 n
1 [2015]; Matter of Madigan v ARR ELS, 126 AD3d 1262, 1263 n
[2015]; Matter of Toledo v Administration for Children Servs.,
112 AD3d 1209, 1210 n [2013]). Since no issue has been raised in
the carrier's brief as to the penalties imposed by the Board,
such claim has been abandoned.
                              -3-                520210

2001 – both of which he successfully treated. In fact, claimant
testified at the hearing that, at the time of the 2003 injury, he
was not working under any restrictions nor had he been working
under any restrictions during the past 15 years. Since the 2003
injury, the record reflects that claimant is unable to work in
any capacity.

      The 2005 IME report indicated that "at least 80 percent of
[claimant's] current disability is due to the [June 2003]
injury." However, as the Board noted, the IME report reveals
that, in arriving at his conclusion, the medical examiner did not
review any of claimant's medical records related to treatment
that occurred prior to the 2003 injury. Further, the IME report
did not indicate whether claimant's prior lower back injuries
posed a potential hindrance to his employability. In light of
the foregoing, we find that substantial evidence supports the
Board's decision that the carrier failed to establish its
entitlement to reimbursement from the Fund and that claimant
suffered a permanent total disability as a result of the 2003
injury (see Matter of Surianello v Consolidated Edison Co. of
N.Y., Inc., 123 AD3d at 1371; Matter of Conway-Acevedo v
Consolidated Edison Co. of N.Y., Inc., 114 AD3d 1016, 1017
[2014]; Matter of Pawlitz-Delgaizo v Community Gen. Hosp., 106
AD3d 1365, 1365 [2013]). We reject the carrier's contention that
the Board erred in finding that the medical examiner's opinion
was not credible, notwithstanding the fact that it was the only
expert opinion regarding apportionment (see Matter of Richman v
NYS Unified Ct. Sys., 91 AD3d 1014, 1015-1016 [2012], lv denied
19 NY3d 811 [2012]; Matter of Aherin v Onondaga, 307 AD2d 393,
394 [2003], lv denied 1 NY3d 501 [2003]).

     Lahtinen, J.P., Garry and Devine, JJ., concur.
                        -4-                  520210

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
