Claim of Guzman v. Display Creation

—Mikoll, J. Appeals from a decision and amended decision of the Workers’ Compensation Board, filed October 30, 1991 and December 8, 1992. The employer appeals from decisions of the Workers’ Compensation Board finding that claimant suffered a neck injury related to an accident at work on January 2, 1976, that claimant was partially disabled subsequent to July 11, 1979 as a result of his neck and other physical injuries, and that he also suffered a consequential psychiatric condition which, subsequent to January 17, 1985, left him totally disabled. It is the employer’s contention that the Board’s decisions are not based on substantial evidence. We disagree. The expert opinion of William Antelo, a psychiatrist, provided the Board with sufficient evidence to find that claimant’s psychiatric disability was causally related to the accident of January 2, 1976. The Board’s exercise of fact finding powers will not be disturbed by the court (see, Matter of Curtis v Adirondack Trailways, 146 AD2d 900). We find also without merit the employer’s contention that it was denied due process by the Board’s reliance on the medical report of Antelo submitted by claimant in that it was not afforded an opportunity to cross-examine the physician whose opinion was crucial on the question of psychiatric disability. As of December 7, 1990, the employer was informed of the Board’s finding of psychiatric disability based on Antelo’s opinion. At no time did the employer request an opportunity to reopen the decision, an interlocutory one, for further development of the issue until a second Board decision, handed down on October 30, 1991, reiterated the same finding as to claimant’s psychiatric condition. The employer’s belated request for reconsideration was properly denied by the Board. We find no abuse of the Board’s discretion in denying a [710] reopening or rehearing (see, Matter of Sammaritano v Attractive Fashions, 96 AD2d 627, lv denied 60 NY2d 558). Cardona, P. J., Crew III and Weiss, JJ., concur. Ordered that the decision and amended decision are affirmed, without costs.