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Friday, September 11, 2015

Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected


Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected
2015 NY Slip Op 06756, Appellate Division, Third Department

An employee [Claimant] sought workers' compensation benefits based upon an alleged disability resulting from her exposure to toxic mold at the workplace and her claim for hypersensitivity reaction to occupational presence of fungi was established.

Claimant was found to have a temporary total disability and an award of benefits was made. Subsequently the claim was amended to include "multiple chemical sensitivity" and awards for a marked disability were continued. In a decision filed March 31, 2010, a Workers' Compensation Law Judge (WCLJ) classified Claimant with a permanent total disability as a result of the work-related injury.

The Workers' Compensation Board modified the March 31, 2010 decision by rescinding the finding of permanent total disability and referring the matter to an impartial specialist to examine Claimant and report to the Board with respect to Claimant's disability classification.

When the matter was restored to the calendar, Theodore Them, the impartial medical specialist who examined Claimant, testified that “multiple chemical sensitivity” was not a medically-recognized condition and, in any event, it was his opinion that Claimant was not suffering from any causally-related disability.

The Board credited the testimony of Them, found no further causally-related disability, thereby reversing the WCLJ's finding of total permanent disability. In this December 19, 2012 decision the Board "closed the case."

Following a number of procedural steps by Claimant, Claimant’s employer sought Board review of a second WCLJ's ruling,*which ruling included a direction to depose Claimant's doctor. The employer contended that the Board's had promulgated a decision on December 19, 2012 that resolved the issue of Claimant's degree of disability by finding that Claimant suffered no causally-related disability and properly closed the case. The Board agreed with the employer and Claimant appealed that determination.

The Appellate Division affirmed the Board’s decision, observing that its review was limited to determining whether the Board abused its discretion or acted in an arbitrary or capricious manner in precluding further development of the record regarding the issue of Claimant's causally-related disability.

The court then ruled that the Board had “properly precluded further development of the record” since the issue of Claimant's causally-related disability was addressed and decided by the Board in its December 19, 2012 decision.

The Appellate Division then explained that “To the extent that Claimant now asserts, on the instant appeal, that the Board erred in crediting the opinion of the impartial specialist that Claimant had no causally-related disability, her remedy was to perfect her appeal from the Board's December 19, 2012 decision,” which had not been done.**

* In a ruling issued April 8, 2013 the WCLJ construed the Board's December 19, 2012 decision as rejecting his prior decision that Claimant suffered a causally-related total disability, but continued the case for further development of the record to determine Claimant's appropriate, lesser degree of disability.

** The Appellate Division noted that Claimant “filed a notice of appeal with this Court as to the December 19, 2012 Board decision, but failed to timely perfect that appeal.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_06756.htm
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