                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      521670
________________________________

In the Matter of the Claim of
   DONALD STANGE,
                    Respondent,
      v

ANGELICA TEXTILE SERVICES,                  MEMORANDUM AND ORDER
   INC., et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   April 27, 2016

Before:   Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

                             __________


      Goldberg Segalla, LLP, Rochester (Jamie L. Caldwell of
counsel), for appellants.

      Lewis & Lewis, PC, Batavia (Daniel P. Kuhn of counsel), for
Donald Stange, respondent.

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

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed October 30, 2014, which ruled, among other things, that
claimant sustained a compensable injury and awarded workers'
compensation benefits.
                              -2-                521670

      Claimant, a production worker, sustained an established
work-related injury to his right shoulder in January 2012 when a
production hamper struck him. The employer did not dispute the
claim, and claimant had authorized surgery in April 2012 to
repair a right shoulder rotator cuff tear and was awarded
benefits for a temporary total disability. On July 30, 2012,
while claimant was recovering and after he had been cleared to
start physical therapy, he stumbled on stairs and reinjured his
right shoulder when he grabbed the railing to catch himself. An
MRI disclosed a torn tendon in his right shoulder. A request by
claimant's treating orthopaedic surgeon, Matthew Landfried, for
authorization to perform additional surgery on claimant's right
shoulder was denied on the grounds that it was a new injury and
that a causal relationship had not been established. Landfried
nonetheless performed a second shoulder surgery on September 19,
2012 to repair claimant's torn right shoulder tendon. After
review by the full Workers' Compensation Board, the Board
determined that claimant had established a causal connection
between his earlier work-related injury and his subsequent
consequential injury. The Board upheld the award of workers'
compensation benefits to claimant for the period following his
second surgery based upon evidence that he had a continuing
causally related temporary total disability. The employer and
its workers' compensation carrier now appeal.

      Whether claimant's subsequent reinjury and resulting
disability consequentially arose from injuries that he sustained
in the January 2012 work-related accident was a factual issue for
the Board to resolve, and its determination will not be disturbed
provided that it is supported by substantial evidence (see Matter
of Senecal v Bendix, 29 AD3d 1232, 1233 [2006]; Matter of Wallace
v Oswego Wire, Inc., 29 AD3d 1057, 1058 [2006]; Matter of Johnson
v OCM BOCES, 13 AD3d 707, 708 [2004]; see also Matter of Caezza v
Via Health, 111 AD3d 1033, 1034 [2013]). Landfried testified
that while claimant's original shoulder tear had been recovering
well prior to the reinjury and the repair of that original
rotator cuff tear "held together" after his July 2012 stumbling
incident, the resulting new tear was an extension of the original
tear. Landfried, who observed the tears to claimant's shoulder
during both surgeries, stated that the two tears overlapped and
opined that the second tear was an exacerbation of the original
                              -3-                521670

tear and preexisting injury, and that the second tear and surgery
were causally related to the first injury. While the carrier's
consultant reached a somewhat contrary conclusion, the Board
discounted that opinion because it failed to address the facts
that the tears overlapped and the second tear was an extension of
the original tear. Significantly, the carrier's consultant did
not review any of claimant's medical records following the first
surgery and prior to the reinjury in forming his opinion
regarding causation. According appropriate deference to the
Board's resolution of the conflicting medical evidence, we find
that substantial evidence supports its determination that
claimant established the requisite causal connection between his
work-related injury and his subsequent consequential injury, and
we decline to disturb it (see Matter of Wilson v Yonkers
Raceway/Empire City, 126 AD3d 1260, 1261 [2015]; Matter of
Malerba v Ameron Global, Inc., 117 AD3d 1302, 1303 [2014]).

      We further find that, notwithstanding that the second
surgery was not authorized, the award to claimant for workers'
compensation benefits at the rate for a temporary total
disability for the period after the reinjury is fully supported
by the medical records of Landfried for that period, which
consistently reflect that claimant suffered such a consequential
disability. In addition, the record does not indicate that the
carrier's September 12, 2012 denial of authorization for the
second surgery was "based on a conflicting second [medical]
opinion" (Workers' Compensation Law § 13-a [5]), as the carrier's
consultant did not perform an independent medical exam until
October 10, 2012.

     Peters, P.J., Lahtinen, Garry and Mulvey, JJ., concur.
                        -4-                  521670

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
