State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 520564 

________________________________

In the Matter of the Claim of

MATTHEW S. JOHNSON,

Appellant,

v

MEMORANDUM AND ORDER

ADAMS & ASSOCIATES et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: May 23, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

The Law Firm of Alex Dell, Albany (Courtney E. Holbrook of

counsel), for appellant.

Law Offices of Rafal Ankier, New York City (Sarah Baia of

counsel), for Hartford Casualty Insurance Company, respondent.

__________

Egan Jr., J.

Appeal from a decision of the Workers' Compensation Board,

filed April 21, 2014, which, among other things, ruled that

claimant did not sustain a consequential injury to his left upper

extremity and denied his claim for further workers' compensation

benefits.

In 2009, claimant fell at work injuring his left knee, and

his claim for workers' compensation benefits was established. 

The claim later was amended to include left lower extremity

reflex sympathetic dystrophy (hereinafter RSD), left leg deep
-2- 520564 

vein thrombosis and injuries to claimant's left achilles heel and

right knee. 

In 2013, claimant sought to amend the claim to include

consequential RSD to his left upper extremity. A Workers'

Compensation Judge denied the application based upon a lack of

credible medical evidence to support the diagnosis. Upon review,

the Workers' Compensation Board affirmed, concluding that

claimant had not demonstrated a consequential injury to his left

upper extremity and that any advance payments of compensation

made by the employer's workers' compensation carrier regarding

that condition did not compel the amendment of the established

claim to include such condition. Claimant now appeals.

We affirm. "So long as the Board's determination is

supported by substantial evidence it will be upheld" (Matter of

Gilman v Champlain Val. Physicians Hosp., 23 AD3d 860, 861 [2005]

[citations omitted]; accord Matter of Eber v Jawanio, Inc., 85

AD3d 1520, 1521 [2011]). Here, Louis Nunez, a physician who

conducted an independent medical examination of claimant –

consisting of three physical examinations and a review of his

medical records – opined that claimant was not suffering from RSD

of the left upper extremity. Nunez based his opinion on the lack

of any of the objective signs of RSD in claimant – changes in

hair and nail growth, changes in the color and temperature of the

skin, changes in the sweat glands and atrophy. Nunez further

noted that a bone scan of claimant was negative for RSD. The

record also contains the medical reports of three other

physicians who examined claimant and found no objective signs of

RSD in the left upper extremity. In contrast, claimant's

treating physician, Brian Bilfield, opined that claimant suffers

from RSD of the left upper extremity and that this condition is

consequentially related to the 2009 injuries. Bilfield

admittedly made this diagnosis without observing the objective

signs of RSD. Rather, he reached his diagnosis based upon

claimant's subjective complaints and muscle tremors. Inasmuch as

the resolution of conflicting medical opinions is within the

exclusive province of the Board, we find its decision that

claimant failed to establish RSD of the left upper extremity to

be supported by substantial evidence (see Matter of Campione v

FMCS, 125 AD3d 1072, 1073 [2015]; Matter of Alm v Natural Health
-3- 520564 

Family Chiropractic, 85 AD3d 1500, 1501 [2011]). 

Finally, we reject claimant's contention that the carrier

is estopped from contesting liability for left upper extremity

RSD based upon certain advance payment of compensation for

medical bills that referenced both the established claim and left

upper extremity RSD. "[W]hile an advance payment of compensation

in the form of covered medical bills precludes a defense based

upon the statute of limitations, it does not foreclose a carrier

from asserting other defenses and, thus, will not give rise to

estoppel where the elements have not been otherwise established"

(Matter of Mason v Glens Falls Ready Mix, 104 AD3d 1010, 1012

[2013]; see Matter of Schneider v Dunkirk Ice Cream, 301 AD2d

906, 909 [2003]).

Garry, J.P., Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court