In the Matter of the Claim ofGAMER BUSAT,Appellant,vRAMAPO MANOR NURSING CENTER,Respondent,and MEMORANDUM AND ORDERSPECIAL FUND FOR REOPENEDCASES,Respondent.WORKERS’ COMPENSATION BOARD,Respondent.________________________________Calendar Date: May 4, 2018Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Rumsey, JJ.__________David Sanua, New York City, for appellant.Steven M. Licht, Special Funds Conservation Committee, NewYork City (Jill B. Singer of counsel), for Special Fund forReopened Cases, respondent.__________Lynch, J.Appeals (1) from a decision of the Workers’ CompensationBoard, filed October 21, 2016, which ruled, among other things,that claimant left his employment for reasons unrelated to hiswork-related disability, and (2) from a decision of said Board,filed January 9, 2017, which denied claimant’s application forreconsideration and/or full Board review.Claimant, a food service worker, suffered work-relatedinjuries to his back, neck and right shoulder in 1997 and wasawarded workers’ compensation benefits. He received variousadditional awards through 2009 but continued working. In January2014, claimant resumed treatment for the right shoulder and wasdetermined to have a 50% temporary disability with light-dutywork restrictions. In mid-September 2014, claimant began a onemonthvacation and was scheduled to return to work on October 12,2014. During that period, claimant was scheduled to havecausally-related right shoulder surgery; instead, he underwent anunrelated cardiac stent procedure on October 10, 2014. Claimantrecovered from the cardiac procedure by October 24, 2014, but didnot return to work. Subsequently, claimant sought additionalawards for the lost time based upon the November 19, 2014 medicalreport of Jonathan Gordon, a treating physician, who determinedthat claimant was now 100% disabled with regard to his rightshoulder.Following a hearing, a Workers’ Compensation Law Judgefound that attachment to the labor market was not at issue andissued an award at a partial rate to November 19, 2014, andthereafter at a total rate through December 4, 2015. TheWorkers’ Compensation Board modified the decision of the Workers’Compensation Law Judge and ruled that claimant’s departure fromemployment was not causally-related to his established medicaldisability and that he had not remained attached to the labormarket. Claimant’s request for reconsideration and/or full Boardreview was denied. These appeals ensued.Whether a claimant’s disability caused time lost from workis a factual determination for the Board that will be upheld ifsupported by substantial evidence (see Matter of Wiltsie v OwensCorning Fiberglass, 43 AD3d 577, 578 [2007]). The Boardidentified the issues as twofold — whether claimant was entitledto awards after October 24, 2014, when his cardiac surgeonindicated he had fully recovered from the surgery, and whetherclaimant thereafter showed an attachment to the labor market.The Board concluded that claimant did not have the right shouldersurgery “even after being able to do so as advanced by histreating physician.” Correspondingly, the Board found thatclaimant was obligated to show an attachment to the labor marketand failed to do so.The Board’s reasoning is contradicted by the record medicalevidence. There is no dispute that claimant had recovered fromthe cardiac procedure by October 24, 2014. The Board erred,however, in concluding that claimant was then cleared for rightshoulder surgery by his treating physician. To the contrary, theconsistent medical evidence showed that claimant was unable togain medical clearance for the shoulder surgery due to themedications that he continued to take for his heart condition.Nor was he able to receive epidurals for pain or antiinflammatorymedication. The Board noted Gordon’s assessment,but not the report by physician Stephen Andrus on October 16,2015 that claimant remained totally disabled. We also take notethat, in November 2014, the employer had been provided with adisability report from Andrus stating that claimant was totallydisabled as of October 15, 2014. Consistently, in his April 30,2015 progress report, physician Michael Cushner explained thatclaimant was still awaiting clearance for the shoulder surgery.Given the factually incorrect basis for the Board’s decision, thematter must be remitted to the Board for a decision based uponall the relevant evidence in the record (see Matter of Evans vJewish Home & Hosp., 1 AD3d 736, 737-738 [2003], lv dismissed 2NY3d 823 [2004]).Garry, P.J., Egan Jr., Mulvey and Rumsey, JJ., concur.ORDERED that the decisions are reversed, with costs, andmatter remitted to the Workers’ Compensation Board for furtherproceedings not inconsistent with this Court’s decision.ENTER:Robert D. MaybergerClerk of the Court
