Claim of Simpson v. New York City Transit Authority

Appeal from a decision of the Workers’ Compensation Board, filed April 1, 2016, which ruled that claimant did not sustain a causally related disability to his knees.

Claimant, a bus driver for 25 years who retired in 2011, applied for workers’ compensation benefits claiming that, as a result of repetitive stress to his knees, he had sustained an occupational disease. While claimant’s treating physician opined that his knee condition was causally related to his work, Pierce Ferriter, an orthopedic surgeon who performed an independent medical exam on claimant in 2012, concluded that it was not causally related. Claimant subsequently underwent an MRI of each knee that disclosed, among other things, possible meniscus tears, degeneration and edema in both knees, ligament strain or partial tear in the right knee, ligament strain

We affirm. As an initial matter, “in order to be entitled to workers’ compensation benefits based upon an occupational disease, the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment” (Matter of Lichten v New York City Tr. Auth., 132 AD3d 1219 , 1219 [2015] [internal quotation marks and citations omitted]; see Workers’ Compensation Law § 2 [15]). In disallowing the claim, the Board credited Wilson’s testimony, which was based upon his exam of claimant and a review of his medical records, including the MRI results for each knee. Wilson diagnosed claimant with “bilateral knee strain with underlying degenerative changes,” and concluded that his knee problems were not causally related to his work activity but, rather, were due to “wear and tear, osteoarthritis, and degenerative changes” that were age-related. This opinion was based upon, among other things, the fact that claimant had not sustained an injury at work and that his knee condition would not have resulted from repeatedly bending and straightening his leg.

We find that Wilson’s medical opinion of no causal relationship is, as required, based upon “a probability of the underlying cause [of his knee condition] that is supported by a rational basis” (Matter of Lichten v New York City Tr. Auth., 132 AD3d at 1219 ). It was within the Board’s exclusive province to credit the opinion of Wilson over that of claimant’s treating physician, who is not an orthopedic surgeon and did not have the benefit of the MRI results (see Matter of Johnson v Adams & Assoc., 140 AD3d 1552 , 1553 [2016]). As the Board’s decision

Finally, contrary to claimant’s contention, the Board’s decision is not contrary to this Court’s remittal order ( 136 AD3d at 1193 ). To that end, our remittal order was based upon the Board’s misreading of the MRI results and did not preclude the Board from crediting and relying upon Wilson’s expert testimony and interpretation of the MRI results.

Egan Jr., Rose, Devine and Clark, JJ., concur.

Ordered that the decision is affirmed, without costs.