                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 18, 2016                   521291
________________________________

In the Matter of the Claim of
   MICHAEL SIMPSON,
                    Appellant,
      v

NEW YORK CITY TRANSIT                       MEMORANDUM AND ORDER
   AUTHORITY,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   January 14, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


     Geoffrey Schotter, New York City, for appellant.

      Foley, Smit, O'Boyle & Weisman, New York City (Benjamin D.
Hecht of counsel), for New York City Transit Authority,
respondent.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed August 26, 2014, which ruled that claimant did not sustain
a causally related disability to his knees.

      Claimant worked as a bus driver for 25 years, retiring in
June 2011. He applied for workers' compensation benefits,
alleging an occupational disease stemming from repetitive stress
injuries to his knees. A Workers' Compensation Law Judge
(hereinafter WCLJ) disallowed the claim in 2012. In so doing,
                              -2-                521291

the WCLJ credited the opinion of Pierce Ferriter, an orthopedic
surgeon who conducted an independent medical examination of
claimant and diagnosed him with degenerative changes in the knees
that were unrelated to his work.

      Claimant thereafter sought to reopen the record, arguing
that recent MRI exams of his knees conflicted with the opinion of
Ferriter and purportedly confirmed the opinion of his own
physician that his condition was causally linked to his work.
The Workers' Compensation Board granted the request and returned
the matter to the WCLJ for further development of the record,
development that included an independent medical examination and
review of medical records conducted by Carl Wilson, another
orthopedic surgeon. The WCLJ credited the opinion of Wilson, who
found no causal link between claimant's knee problems and his
employment, and disallowed the claim. The Board affirmed,
prompting this appeal by claimant.

      We reverse. While the factual determination of the Board
regarding the causality of a disabling condition "will generally
be upheld if supported by substantial evidence, when it appears
that the Board's decision may have been based on an inaccurate
reading of the record or incomplete facts, it cannot be
sustained" (Matter of Sajeski v Waldbaum's, 66 AD3d 1183, 1184
[2009] [internal citation omitted]; see Matter of LaFlamme v S.S.
Elec. Repair Shop, Inc., 12 AD3d 732, 733 [2004]). The Board
here reasoned that claimant used his right knee more than his
left knee at work and that, as a result, MRI tests "reveal[ing]
findings which were essentially similar bilaterally" supported
the opinion of Wilson that the knee problems were not work-
related. The actual MRI test results, however, show that
claimant sustained more extensive injuries to his right knee than
to his left knee. The results also contradict the other basis
relied upon by the Board for crediting Wilson's opinion, namely,
the opinion of Ferriter that claimant suffered from an
age-related arthritic condition in both knees. Thus, inasmuch as
we are unable to "discern what role, if any, [the Board's]
inaccurate reading of the record played in" its decision to
credit the opinion of Wilson and make a finding of no causation,
reversal is required (Matter of LaFlamme v S.S. Elec. Repair
Shop, Inc., 12 AD3d at 733).
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     McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.



      ORDERED that the decision is reversed, with 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
