                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 28, 2016                   520783
________________________________

In the Matter of the Claim of
   ROBERT CAMPBELL,
                    Appellant,
      v

INTERSTATE MATERIALS CORPORATION            MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   December 15, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Law Offices of Joseph Romano, New York City (Joseph A.
Romano of counsel), for appellant.

      Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe
of counsel), for Interstate Materials Corporation and another,
respondents.

                             __________


McCarthy, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed September 30, 2014, which, among other things, ruled that
claimant sustained a permanent partial disability.

      Claimant, who worked as an operating manager for Interstate
Materials Corporation, sustained injuries to his neck, back and
knees in August 2006 while operating an excavator when a large
bucket of sand was released on top of him causing him to be
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buried up to his waist. The Workers' Compensation Board
eventually determined that claimant had a permanent marked
partial disability resulting from the 2006 accident and awarded
him benefits. In April 2008, claimant sustained a second
accident, injuring his lower back while lifting a heavy bucket,
after which a Workers' Compensation Law Judge found that claimant
had established a work-related injury.

      Thereafter, a Workers' Compensation Law Judge ordered
claimant to produce medical evidence of apportionment between the
two injuries and directed the depositions of claimant's treating
neurologist and the workers' compensation carrier's independent
medical examiner (hereinafter IME). After two unsuccessful
attempts were made to depose the IME, in a December 2013 reserved
decision, a Workers' Compensation Law Judge (hereinafter WCLJ)
struck the IME's medical report from the record and found, given
the absence of an extension request or sufficiently compelling
reasons for the failure to timely produce the directed deposition
transcript of the IME, that claimant forfeited his right to
cross-examine the IME. The WCLJ classified claimant with a
permanent total disability and found that there was no basis for
apportionment between the two injuries at issue, thereby
attributing claimant's disability entirely to his 2006 injury.
Upon review, the Board found that the WCLJ improperly precluded
the IME's medical report because statements were made on the
record explaining that his absence was due to his
hospitalization. The Board also found, contrary to the WCLJ,
that claimant should be classified as having a permanent partial
disability and not a permanent total disability. The Board also
determined that claimant's disability was equally apportionable
to each of claimant's two accidents.

      We affirm. Initially, we find no abuse of discretion in
the Board's decision to consider the filed medical report of the
IME despite the fact that claimant was not afforded an
opportunity to depose him. "A party clearly has the right to
cross-examine medical experts" (Matter of Floyd v Millard
Fillmore Hosp., 299 AD2d 610, 611 [2002] [citations omitted]; see
Workers' Compensation Law § 13-a [4] [b]; 12 NYCRR 300.11 [c]),
and, where "the carrier is at fault or has no excuse for failing
to timely furnish its evidence [or IME], it is not an abuse of
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discretion to preclude that evidence" or the IME's medical report
absent extraordinary circumstances (Matter of Hutchins v Callanan
Indus., 293 AD2d 902, 902 [2002]; see 12 NYCRR 300.10 [b], [c];
Matter of Hicks v Hudson Val. Community Coll., 34 AD3d 1039, 1040
[2006]). Here, however, where the record reflects that the IME
was unavailable for the scheduled depositions due to an emergency
surgery and extended stay in the hospital, and where claimant
made no further attempt to depose the IME or to request an
extension of time to do so, the Board did not abuse its
discretion in proceeding to determine the claim on the existing
evidence in the record (see 12 NYCRR 300.10 [b], [c]; cf. Matter
of Patterson v Empire Blue Cross & Blue Shield, 23 AD3d 870, 871
[2005]; Matter of Hutchins v Callanan Indus., 293 AD2d at 902;
Employer: Town Sports Intl. Inc., 2014 WL 344666, *2, 2014 Wrk
Comp LEXIS 556, *5-6 [WCB No. 0016 3569, Jan. 24, 2014]).

      Turning to the merits, claimant contends that the Board's
determination that claimant has a permanent partial disability is
not supported by substantial evidence. We cannot agree. It is
well settled that "'[t]his Court accords great deference to the
Board's resolution of issues concerning conflicting medical
evidence and witness credibility, and the Board may accept or
reject portions of a medical expert's opinion'" (Matter of
Malerba v Ameron Global, Inc., 117 AD3d 1302, 1302-1303 [2014],
quoting Matter of Williams v Colgate Univ., 54 AD3d 1121, 1123
[2008]). Here, although claimant's treating neurologist
indicated that claimant sustained a permanent total disability as
a result of his 2006 injury, the neurologist acknowledged that
claimant did not exhibit atrophy or any sensory or reflex
deficits and could participate in some degree of physical
therapy. The neurologist also acknowledged that claimant is
still capable of driving and dressing himself with some
assistance. Indeed, the IME, who found that claimant had a
permanent moderate to marked partial disability, noted that
claimant, who had a gym membership, should participate in
exercises, such as swimming or walking on a treadmill, to
strengthen his joints and muscles and that claimant could return
to a sedentary type of employment where he could sit and stand as
needed during the course of the workday. As the Board was
empowered to resolve the conflicting medical evidence in reaching
its conclusion, we find that the Board's decision is supported by
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substantial evidence and there is no basis upon which to disturb
it (see Matter of LaClaire v Birds Eye Foods, Inc., 128 AD3d
1298, 1299 [2015]; Matter of Mearns v Sunoco, Inc., 77 AD3d 1045,
1046 [2010]).

      As to claimant's contention that substantial evidence does
not support the Board's determination to apportion his disability
equally between the 2006 and 2008 injuries, "'[a]pportionment of
a workers' compensation award is a factual issue for the Board to
determine, and its decision will be upheld if supported by
substantial evidence'" (Matter of Ford v Fucillo, 66 AD3d 1066,
1067 [2009], quoting Matter of Huss v Tops Mkts., Inc., 13 AD3d
768, 769 [2004]). Apportionment "is appropriate where the
medical evidence establishes that the claimant's current
disability is at least partially attributable to a prior
compensable injury" (Matter of Ford v Fucillo, 66 AD3d at 1067).
Here, the evidence reflects that, although claimant was
experiencing cervical and lumbar pain after his 2006 injury, he
missed no time from work prior to his 2008 injury, and, following
that 2008 injury, claimant missed time from work due to his
worsening symptoms, which included "severe restriction in range
of motion" and "severe spasm[s]." Accordingly, substantial
evidence supports the Board's decision to apportion claimant's
disability equally between the two injuries, and we decline to
disturb that decision (see Matter of Ford v Fucillo, 66 AD3d at
1067; Matter of Huss v Tops Mkts., Inc., 13 AD3d at 769; Matter
of McCloskey v Marriott Corp., 290 AD2d 671, 671-672 [2002]).

     Egan Jr., Lynch and Clark, JJ., concur.


     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
