                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 23, 2016                      521072
________________________________

In the Matter of the Claim of
   MIKHAIL PINKHASOV,
                    Respondent,
      v

AUTO ONE INSURANCE,
                      Respondent,
     and                                     MEMORANDUM AND ORDER

FIDELITY & DEPOSIT COMPANY OF
   MARYLAND, c/o ZURICH
   AMERICAN INSURANCE,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    May 27, 2016

Before:    McCarthy, J.P., Rose, Devine, Clark and Aarons, JJ.

                              __________


      Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe
of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Donya Fernandez of counsel), for Workers' Compensation Board,
respondent.

                              __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed September 2, 2014, which ruled, among other things, that
                               -2-                521072

claimant was entitled to temporary total disability benefits
subsequent to the date of his lumbar fusion surgery.

      On January 19, 2006, claimant was involved in a motor
vehicle accident while driving a company vehicle during his
employment. He applied for workers' compensation benefits and
his claim was established for work-related injuries to his neck,
back, right shoulder and right knee. In 2009, pursuant to a
stipulation of the parties, a Workers' Compensation Law Judge
(hereinafter WCLJ) ruled, among other things, that claimant was
entitled to receive permanent partial disability benefits based
on the schedule loss of use of his right arm and leg. The WCLJ
indicated that no further action was planned and the case was
closed.

      Claimant's lower back pain worsened in 2011 and he
experienced a fall resulting in his hospitalization. He had
surgery on his lumbar spine on May 16, 2011 and again on July 15,
2011, both of which were covered by private insurance.1
Claimant's workers' compensation claim was subsequently reopened
based on a change in his medical condition. In March 2012,
claimant's treating physician sought authorization to perform
lumbar fusion surgery and, in May 2012, authorization was granted
by an order of the chair of the Workers' Compensation Board.
Claimant underwent lumbar fusion surgery on May 17, 2013.

      Thereafter, additional proceedings were conducted before a
WCLJ, at which time the employer's workers' compensation carrier
disputed the causal relationship between the accident and
claimant's medical treatment following the closure of the case.
Nevertheless, without considering further evidence on this issue,
the WCLJ, among other things, awarded claimant temporary total
disability benefits subsequent to the date of his lumbar fusion
surgery. On appeal, the Board panel upheld the WCLJ's decision,
and the carrier now appeals.



     1
        Claimant explained that he was unaware that his workers'
compensation case could be reopened at the time and,
consequently, utilized his private insurance.
                              -3-                521072

      "[U]nder the Workers' Compensation Law scheme, employers
are required to pay for medical treatment, procedures, devices,
tests and services . . . for employees who sustain causally
related injuries 'for such period as the nature of the injury or
the process of recovery may require'" (Matter of Kigin v State of
N.Y. Workers' Compensation Bd., 109 AD3d 299, 306 [2013], affd 24
NY3d 459 [2014] [emphasis added], quoting Workers' Compensation
Law § 13 [a]). Initially, the chair's May 2012 order authorizing
claimant's surgery, which is not appealable (see Workers'
Compensation Law § 23; 12 NYCRR 324.3 [d] [6]; 325-1.4 [a] [8]),
is not dispositive of the issue presented here, as the
controlling factor considered by the chair was whether the
procedure was medically necessary (see Matter of Kigin v State of
N.Y. Workers' Compensation Bd., 109 AD3d at 306; see also 12
NYCRR 324.3 [a] [1], [2]; 325-1.25 [a] [2]), not whether the
condition necessitating the procedure was causally related to the
compensable accident.

      In raising the issue of causal relationship, the carrier
argued that the condition precipitating claimant's lumbar fusion
surgery could be related to his two 2011 lumbar surgeries or
possibly to three prior automobile accidents that occurred before
2009. The carrier requested medical records pertaining to all of
claimant's surgeries and his prior medical treatment. These
records were not provided to the WCLJ prior to the issuance of
his decision. However, during the pendency of the carrier's
appeal, medical records relating to all of claimant's surgeries
and his treatment following the May 16, 2011 surgery were
disclosed and considered by Frank Hudacs, the physician who
conducted an independent medical examination of claimant on
behalf of the carrier.

      In his report, Hudacs opined that claimant was temporarily
totally disabled and stated that "the diagnosis given is causally
related to the accident of 01/19/06 superimposed upon multiple
prior injuries to the lower back that have been listed in prior
reports." In a supplemental report, he added that "claimant's
surgery to the lumbosacral spine on 5/16/11 was related to a fall
that occurred at the claimant's home on 5/15/11." In our view,
Hudacs' opinion does not constitutue a rational basis to support
a determination that there is a "probability of a causal
                              -4-                  521072

relationship" between the January 19, 2006 accident and the
conditions that necessitated claimant's surgeries (Matter of
Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014 [2014]; see
Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998, 999 [2013]).
Additionally, another physician who treated claimant for back
pain after his 2011 surgeries indicated that claimant's residual
symptoms were due to degenerative disc disease. Accordingly, in
the absence of competent medical evidence establishing a causal
relationship between claimant's medical condition at the time of
his surgeries and the January 19, 2006 accident, we are compelled
to find that the Board's decision awarding claimant temporary
total disability benefits is not supported by substantial
evidence (see Matter of Cunningham v New York City Tr. Auth., 122
AD3d 1042, 1043 [2014]; Matter of Anderson v New York City Dept.
of Design & Constr., 121 AD3d 1146, 1147 [2014]; compare Matter
of Bolds v Precision Health, Inc., 16 AD3d 1007, 1009 [2005]).
In view of our disposition, we need not address the carrier's
remaining claims.

     McCarthy, J.P., Rose, Devine and Aarons, JJ., concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Workers' Compensation Board for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
