Claim of Kelsey v. New York State University at Geneseo

Appellate Division of the Supreme Court of New York

Claim of Kelsey v. New York State University at Geneseo

232 A.D.2d 688, 647 N.Y.S.2d 875, 1996 N.Y. App. Div. LEXIS 10058

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 10, 1996

StatusPublished

Cited by2 cases

This text of 232 A.D.2d 688 (Claim of Kelsey v. New York State University at Geneseo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Kelsey v. New York State University at Geneseo, 232 A.D.2d 688, 647 N.Y.S.2d 875, 1996 N.Y. App. Div. LEXIS 10058 (N.Y. Ct. App. 1996).

Pincite

Opinion

—Appeal from a decision of the Workers’ Compensation Board, filed February 27, 1995, which, inter alia, ruled that claimant sustained a compensable injury and awarded workers’ compensation benefits.

Claimant was employed as a cleaner when she was injured at work by a metal door which fell over, striking her on the back. At a hearing before a Workers’ Compensation Law Judge (hereinafter WCLJ) claimant’s chiropractor, James Watkins, testified that although claimant was suffering from a cancerous tumor in her spine, a portion of her back pain was nonetheless caused by her employment-related injury. The employer stipulated to Watkins’ qualifications as an expert witness at this hearing, raising no objections to his qualifications. The WCLJ determined that claimant had no further causally related disability. On appeal, however, the Board reversed, determining that further awards were justified based upon Watkins’ opinion.

[689]*689The WCLJ ultimately determined that claimant had suffered a continuing partial disability which was 75% causally related to her back injury. The employer appealed the decision, contending that Watkins was not competent to testify regarding the impact of claimant’s cancer upon her disability. The Board affirmed.

The employer appeals, contending that the Board’s decision is not supported by substantial evidence because it was based upon Watkins’ testimony and Watkins, as a chiropractor, was incompetent to testify regarding the effect of claimant’s tumor on her disability. We disagree. The right to object to Watkins’ qualifications was waived by the employer’s failure to object thereto at the time of his testimony before the WCLJ (see, Matter of Druziak v Town of Amsterdam, 209 AD2d 870, 872, lv denied 85 NY2d 809). While there remains a conflict as to causality between Watkins and the employer’s medical expert witness, such conflict was appropriately resolved by the Board (see, Matter of Lynch v New York City Hous. Auth., 169 AD2d 1029).

Cardona, P. J., Mercure, Crew III, Casey and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

Free access — add to your briefcase to read the full text and ask questions with AI

—Appeal from a decision of the Workers’ Compensation Board, filed February 27, 1995, which, inter alia, ruled that claimant sustained a compensable injury and awarded workers’ compensation benefits.

Claimant was employed as a cleaner when she was injured at work by a metal door which fell over, striking her on the back. At a hearing before a Workers’ Compensation Law Judge (hereinafter WCLJ) claimant’s chiropractor, James Watkins, testified that although claimant was suffering from a cancerous tumor in her spine, a portion of her back pain was nonetheless caused by her employment-related injury. The employer stipulated to Watkins’ qualifications as an expert witness at this hearing, raising no objections to his qualifications. The WCLJ determined that claimant had no further causally related disability. On appeal, however, the Board reversed, determining that further awards were justified based upon Watkins’ opinion.

[689]*689The WCLJ ultimately determined that claimant had suffered a continuing partial disability which was 75% causally related to her back injury. The employer appealed the decision, contending that Watkins was not competent to testify regarding the impact of claimant’s cancer upon her disability. The Board affirmed.

The employer appeals, contending that the Board’s decision is not supported by substantial evidence because it was based upon Watkins’ testimony and Watkins, as a chiropractor, was incompetent to testify regarding the effect of claimant’s tumor on her disability. We disagree. The right to object to Watkins’ qualifications was waived by the employer’s failure to object thereto at the time of his testimony before the WCLJ (see, Matter of Druziak v Town of Amsterdam, 209 AD2d 870, 872, lv denied 85 NY2d 809). While there remains a conflict as to causality between Watkins and the employer’s medical expert witness, such conflict was appropriately resolved by the Board (see, Matter of Lynch v New York City Hous. Auth., 169 AD2d 1029).

Cardona, P. J., Mercure, Crew III, Casey and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

Cite This Page — Counsel Stack

Bluebook (online)

232 A.D.2d 688, 647 N.Y.S.2d 875, 1996 N.Y. App. Div. LEXIS 10058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-kelsey-v-new-york-state-university-at-geneseo-nyappdiv-1996.

Opinion

Related

Cite This Page — Counsel Stack