Claim of Franco v. Peckham Industries, Inc.

91 A.D.3d 997, 936 N.Y.2d 715

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 2012
• Status: Published

Opinion

Kavanagh, J.

We affirm. Inasmuch as claimant did not appeal from the Board’s determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved (see Matter of Beers v Jump Start Advanced Academics, 57 AD3d 1026, 1028 [2008]; Matter of Cullen v City of White Plains, 45 AD3d 1167, 1168-1169 [2007]). Turning to the issue of whether the Board’s determination that claimant has no further disability due to his work-related back injury is supported by substantial evidence, we recognize the Board’s authority to resolve differing medical evidence and we defer to the Board’s credibility determinations (see Matter of Banner v Anheuser-Busch Cos., Inc., 59 AD3d 759, 760 [2009]; Matter of Dimitriadis v One Source, 53 AD3d 704, 705-706 [2008]; Matter of Cullen v City of White Plains, 45 AD3d at 1168). The Board found the opinions of John Mitamurai, an orthopedist, and Sandra Caniciu, a neurologist, more credible than the other medical experts. Mitamurai and Caniciu, who both examined and treated claimant, opined that claimant’s present disability is not related to his workplace injury, but is solely due to the subsequent, unrelated tuberculosis myeletis condition. Accordingly, we find that the Board’s determination is supported by substantial evidence and we will not disturb it.

Peters, J.P, Rose, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.