State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 520631 

________________________________

In the Matter of the Claim of 

STEWART LICHTEN,

Appellant,

v

NEW YORK CITY TRANSIT MEMORANDUM AND ORDER

AUTHORITY,

Respondent.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 11, 2015

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

__________

Geoffery Schotter, New York City, for appellant.

Jones Jones, LLC, New York City (Carmel Corcoran of

counsel), for New York City Transit Authority, respondent.

__________

McCarthy, J.P.

Appeal from a decision of the Workers' Compensation Board,

filed May 8, 2014, which, among other things, ruled that claimant

did not sustain a causally related disability to his bilateral

knees.

Claimant worked as a bus driver, but stopped working in

January 2010 after he suffered a heart attack. In March 2011, he

filed a claim for workers' compensation benefits based upon an

occupational disease stemming from repetitive stress injuries to

his legs, including his hips, knees and feet, caused by his many
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years of working as a bus driver. The self-insured employer

controverted the claim and hearings were conducted before a

Workers' Compensation Law Judge (hereinafter WCLJ). At the

conclusion of the hearings and based upon the medical evidence

presented, the WCLJ established the case for an occupational

disease to claimant's bilateral hips, but disallowed the claim

with respect to his bilateral knees, and made schedule loss of

use awards. On appeal, the Workers' Compensation Board, among

other things, upheld that portion of the WCLJ's decision

disallowing the claim relating to claimant's bilateral knees. 

Claimant now appeals. 

Initially, 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

Satalino v Dan's Supreme Supermarket, 91 AD3d 1019, 1019 [2012],

quoting Matter of Ferraina v Ontario Honda, 32 AD3d 643, 644

[2006]). Moreover, where medical proof is relied upon to

demonstrate the existence of a causal relationship, it must

signify a probability of the underlying cause that is supported

by a rational basis and not be based upon a general expression of

possibility (see Matter of Phelan v Bethpage State Park, 126 AD3d

1276, 1277 [2015], lv denied 25 NY3d 911 [2015]; Matter of

Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014 [2014]). 

Here, claimant's occupational disease claim is premised

upon the repetitive stress injuries that he sustained while using

his legs to operate his bus over many years. Three medical

professionals testified before the WCLJ with respect to this

issue. A board-certified rheumatologist had treated claimant

while he was still employed and for some time thereafter. When

asked to identify what complaints claimant made during this time

period, the doctor explained that claimant complained of hip and

foot pain, and that those continued to be claimant's complaints

through 2012, approximately two years after he had ceased driving

a bus. The rheumatologist gave no opinion regarding claimant's

knees. 

Claimant's treating orthopedist also testified. He stated

that, after treating claimant fairly regularly during 2011, he
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diagnosed claimant with, among other things, degenerative

arthritis of the left and right knees. He opined that these

conditions were causally related to claimant's work activities,

explaining that the repetitive use of his legs to apply the

brakes and gas were stressors that could worsen the development

of these conditions over time. The orthopedist who conducted an

independent medical examination of claimant on behalf of the

self-insured employer opined that claimant's osteoarthritic

conditions were caused by a preexisting condition. He

acknowledged the possibility that claimant's use of his right leg

in applying the brake could have potentially aggravated an

existing condition in claimant's right knee, but he did not

render an opinion regarding the likelihood that this, in fact,

had been the case with claimant. 

Accordingly, only claimant's treating orthopedist opined

that driving a bus had, in fact, aggravated claimant's existing

knee condition. The fact that neither of the remaining experts

took a contrary position – or took a position on the matter at

all – did not mandate that the Board credit the opinion of

claimant's treating orthopedist. The Board could reasonably

conclude from the rheumatologist's testimony that, at the time

that claimant was employed and for some time thereafter, he was

not experiencing knee problems. The Board was equally entitled

to discredit claimant's treating orthopedist's opinion that,

despite this absence of knee complaints, claimant had been

aggravating an existing knee condition while he was driving a bus

prior to January 2010. Such a credibility determination is

within the Board's authority (see Matter of Tangorre v Tech Home

Elec., LLC, 124 AD3d 1183, 1184 [2015]; Matter of Ward v General

Utils., 100 AD3d 1113, 1113 [2012]). Accordingly, we find that

substantial evidence supports the Board's decision.

Egan Jr., Lynch and Clark, JJ., concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court