                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   521389
________________________________

In the Matter of the Claim of
   MAURICE OPARAJI,
                    Appellant,
      v

BOOKS & RATTLES et al.,                     MEMORANDUM AND ORDER
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   January 12, 2017

Before:   Peters, P.J., Egan Jr., Rose, Devine and Aarons, JJ.

                             __________


     Maurice Oparaji, Rosedale, appellant pro se.

      William O'Brien, State Insurance Fund, New York City (David
J. Schatten of counsel), for Books & Rattles and another,
respondents.

                             __________


Aarons, J.

      Appeal from a decision of the Workers' Compensation Board,
filed December 29, 2014, which ruled that claimant did not
sustain a causally-related injury to his back and denied
authorization for surgery to his right shoulder.

      In 2008, claimant, a preschool teacher, was injured when he
was involved in a physical altercation with the parent of a
student. His claim for workers' compensation benefits was
established for injuries to his neck and chest. In 2010, the
claim was amended to include injuries to both his arms. At that
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time, claimant also sought to establish a causally-related injury
to his back and requested that surgery to his right shoulder be
authorized. A Workers' Compensation Law Judge thereafter amended
the claim to include a back injury and authorized surgery for
claimant's right shoulder. Upon review, a majority decision of
the Workers' Compensation Board affirmed, with one Board panel
member dissenting. The employer's workers' compensation carrier
requested full Board review of the Board panel's decision.
Following such review, the full Board reversed the decision of
the Board panel and found that claimant did not sustain a
causally-related injury to his back and denied authorization for
right shoulder surgery. Claimant now appeals.

      We affirm. "The Board is empowered to determine the
factual issue of whether a causal relationship exists based upon
the record, and its determination will not be disturbed when
supported by substantial evidence" (Matter of Virtuoso v Glen
Campbell Chevrolet, Inc., 66 AD3d 1141, 1142 [2009] [citations
omitted]; see Matter of Mallette v Flattery's, 111 AD3d 989, 990
[2013]). In support of a finding of a causally-related back
injury, claimant presented the reports and testimony of his
treating physician, surgeon Emmanuel Lambrakis. Lambrakis
testified that he began treating claimant in 2010, and he
diagnosed claimant as suffering from, among other things, a
causally-related injury to his lumbar spine. Lambrakis also
testified that he concluded that the back injury was a result of
the 2008 altercation, based upon the diagnosis of the physician
who treated claimant right after the altercation, who Lambrakis
believed diagnosed claimant with low back syndrome. The record
reflects, however, that claimant's previous physician limited his
diagnosis to a displaced intervertebral cervical disc. Moreover,
claimant's 2008 C-3 employee claim form lists constant pain in
the chest and shortness of breath, with no mention of back pain.
Further, a physician who examined claimant in May 2009 reported
that claimant complained of pain in his chest, neck and shoulder
as a result of the altercation, with no mention of a back injury.
Based upon our review of the record, the Board's decision that
claimant failed to establish a causally-related back injury is
supported by substantial evidence (see Matter of Guz v Jewelers
Machinist, Inc., 71 AD3d 1272, 1273 [2010]; Matter of Hernandez v
Vogel's Collision Serv., 48 AD3d 861, 861-862 [2008]).
                              -3-                521389

      Turning to the authorization of right shoulder surgery,
"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
Pinkhasov v Auto One Ins., 140 AD3d 1487, 1488 [2016] [internal
quotation marks and citations omitted]). Lambrakis diagnosed
claimant as suffering from a derangement of the right shoulder
and a partial tear of the rotator cuff, as evidenced by a 2010
MRI of the shoulder, and that the conditions were causally
related to the 2008 altercation. Lambrakis, however, incorrectly
concluded that claimant was diagnosed with a right shoulder
injury by the initial treating physician, insofar as there is
nothing in the medical records indicating either a diagnosis of a
shoulder injury or complaints of shoulder pain by claimant
contemporaneous with the altercation. Additionally, orthopedic
surgeon John Xethalis, who examined claimant in 2010 and 2011,
concluded that claimant's right shoulder condition was causally
related to the altercation. Xethalis testified, however, that
claimant informed him that he was experiencing pain in the right
shoulder immediately after the altercation, a contention that is
not supported by claimant's medical records. In contrast,
orthopedic surgeon Jonathan Glassman, who examined claimant on
behalf of the carrier in July 2010 and February 2011 and reviewed
his medical records, opined that the condition of claimant's
right shoulder, including the rotator cuff tear, was the result
of degenerative changes and not causally related to the 2008
altercation. Glassman noted the lack of any contemporaneous
complaints of right shoulder pain by claimant following the
altercation. According proper deference to the Board's
resolution of conflicting medical evidence and evaluation of
witness credibility (see Matter of Johnson v Adams & Assoc., 140
AD3d 1552, 1553 [2016]; Matter of Wilson v Yonkers Raceway/Empire
City, 126 AD3d 1260, 1261 [2015]), we conclude that the Board's
decision not to authorize causally-related right shoulder surgery
is supported by substantial evidence and it will not be
disturbed. Claimant's remaining claims have been considered and
found to be without merit.

     Peters, P.J., Egan Jr., Rose and Devine, JJ., concur.
                        -4-                  521389


ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
