                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 30, 2016                     520564
________________________________

In the Matter of the Claim of
   MATTHEW S. JOHNSON,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ADAMS & ASSOCIATES et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   May 23, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


      The Law Firm of Alex Dell, Albany (Courtney E. Holbrook of
counsel), for appellant.

      Law Offices of Rafal Ankier, New York City (Sarah Baia of
counsel), for Hartford Casualty Insurance Company, respondent.

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed April 21, 2014, which, among other things, ruled that
claimant did not sustain a consequential injury to his left upper
extremity and denied his claim for further workers' compensation
benefits.

      In 2009, claimant fell at work injuring his left knee, and
his claim for workers' compensation benefits was established.
The claim later was amended to include left lower extremity
reflex sympathetic dystrophy (hereinafter RSD), left leg deep
                              -2-                520564

vein thrombosis and injuries to claimant's left achilles heel and
right knee.

      In 2013, claimant sought to amend the claim to include
consequential RSD to his left upper extremity. A Workers'
Compensation Judge denied the application based upon a lack of
credible medical evidence to support the diagnosis. Upon review,
the Workers' Compensation Board affirmed, concluding that
claimant had not demonstrated a consequential injury to his left
upper extremity and that any advance payments of compensation
made by the employer's workers' compensation carrier regarding
that condition did not compel the amendment of the established
claim to include such condition. Claimant now appeals.

      We affirm. "So long as the Board's determination is
supported by substantial evidence it will be upheld" (Matter of
Gilman v Champlain Val. Physicians Hosp., 23 AD3d 860, 861 [2005]
[citations omitted]; accord Matter of Eber v Jawanio, Inc., 85
AD3d 1520, 1521 [2011]). Here, Louis Nunez, a physician who
conducted an independent medical examination of claimant –
consisting of three physical examinations and a review of his
medical records – opined that claimant was not suffering from RSD
of the left upper extremity. Nunez based his opinion on the lack
of any of the objective signs of RSD in claimant – changes in
hair and nail growth, changes in the color and temperature of the
skin, changes in the sweat glands and atrophy. Nunez further
noted that a bone scan of claimant was negative for RSD. The
record also contains the medical reports of three other
physicians who examined claimant and found no objective signs of
RSD in the left upper extremity. In contrast, claimant's
treating physician, Brian Bilfield, opined that claimant suffers
from RSD of the left upper extremity and that this condition is
consequentially related to the 2009 injuries. Bilfield
admittedly made this diagnosis without observing the objective
signs of RSD. Rather, he reached his diagnosis based upon
claimant's subjective complaints and muscle tremors. Inasmuch as
the resolution of conflicting medical opinions is within the
exclusive province of the Board, we find its decision that
claimant failed to establish RSD of the left upper extremity to
be supported by substantial evidence (see Matter of Campione v
FMCS, 125 AD3d 1072, 1073 [2015]; Matter of Alm v Natural Health
                              -3-                  520564

Family Chiropractic, 85 AD3d 1500, 1501 [2011]).

      Finally, we reject claimant's contention that the carrier
is estopped from contesting liability for left upper extremity
RSD based upon certain advance payment of compensation for
medical bills that referenced both the established claim and left
upper extremity RSD. "[W]hile an advance payment of compensation
in the form of covered medical bills precludes a defense based
upon the statute of limitations, it does not foreclose a carrier
from asserting other defenses and, thus, will not give rise to
estoppel where the elements have not been otherwise established"
(Matter of Mason v Glens Falls Ready Mix, 104 AD3d 1010, 1012
[2013]; see Matter of Schneider v Dunkirk Ice Cream, 301 AD2d
906, 909 [2003]).

     Garry, J.P., Lynch, Devine and Mulvey, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
