Work related disability
Cocco v NYC Dept. of Trans., 266 AD2d 634
From time to time, an employee will file a workers’ compensation claim alleging that his or her work aggravated a pre-existing condition. In the Cocco case, the Appellate Division, Third Department, sets out the distinction courts make in considering such cases.
The Workers’ Compensation Board had approved Cocco’s claim for benefits based on his contention that his work for the New York City Department of Transportation as a bridge painter aggravated his preexisting chronic obstructive pulmonary condition. The Board ruled that Cocco had suffered an occupational disease within the meaning of Workers’ Compensation Law Section 3(2)(30). The Department appealed.
The Appellate Division said that in this type of case, it all depends on whether the employee’s disability resulted from (a) a previously active disabling condition; or (b) the aggravation of a condition, which was previously dormant and not disabling.
The Appellate Division said that “[t]o be compensable, the preexisting condition must be dormant and nondisabling and some distinctive feature of the employment must cause disability by activating the condition.”
Cocco and his expert both testified that Cocco’s pulmonary condition was dormant and nondisabling, and that “his exposure to noxious substances as a bridge painter for the employer acted on the preexisting condition in such a manner as to cause disability which did not previously exist.”