Wednesday, August 09, 2017

The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability


The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability
2017 NY Slip Op 06013, Appellate Division, Third Department

A firefighter [Claimant], diagnosed with prostate cancer at the age of 51, filed a claim for workers' compensation benefits alleging that he was exposed to toxic fumes and asbestos as a firefighter and that he contracted prostate cancer as a result.

The claim was controverted* and ultimately the Workers' Compensation Board determined that the medical opinions in the record supporting a finding of causal relationship were unconvincing and speculative and, therefore, insufficient to support a finding of causal relationship between Claimant's prostate cancer and his employment as a paid firefighter.

Claimant appealed the Board's determination. The Appellate Division sustained the Board's determination, explaining that "... the party seeking benefits ... bore the burden of establishing — by competent medical evidence — a causal connection between his [or her] employment and the claimed disability."** Further, said the court, "[w]here 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."

According to the decision, Claimant responded to about 577 fire calls, which included roughly 100 actual fires, over his 24-year career as a firefighter, and he filled out an exposure report on at least four occasions when he felt that he had been exposed to something out of the ordinary. Claimant, however, indicated that he is not specifically aware of the various chemicals or toxins to which he might have been exposed.

The record also indicated that Claimant had periodically working for a friend in the plumbing and heating business to clean furnaces and other related tasks and that "prior to becoming a firefighter Claimant was employed as a deliverer of kerosene for at least eight years."

One expert testified that "epidemiologic studies have demonstrated an increased risk of prostate cancer among firefighters and that [Claimant], over his 24-year career, would have had ample time for exposure to carcinogenic materials."

A second expert testified that "the epidemiological studies linking firefighting and certain types of cancer fail to adequately examine environmental and demographic factors that would affect the risk of cancer" and that "it was not possible to definitively ascertain whether Claimant's prostate cancer — a "very common disease" among men — was caused by his employment as a firefighter given the lack of information regarding what Claimant was specifically exposed to while fighting fires."

A third expert, an oncologist appointed as the impartial specialist by the full Workers' Compensation Board, reported that, based upon his review of the relevant records, there was no evidence of any elevated risk factors typically associated with prostate cancer and that the incidence of new cases of prostate cancer in Claimant's "age group is well under 0.5%. Although this expert concluded that it was "reasonable to assume that [Claimant's] employment as a firefighter for 24 years may have [had] a causal relationship to the development of prostate cancer," he also testified that he "was unaware of Claimant's other previous employment consisting of cleaning furnaces and delivering kerosene or of the minimal number of exposure reports submitted by Claimant during his 24-year career as a firefighter and that, upon being apprised of this information, he could not assign a causal relationship."

The Appellate Division found that, in consideration of the conflicting evidence, "including the prevalence of prostate cancer and the other possible explanations for Claimant contracting the condition," the Workers' Compensation Board "acted within its discretion" in characterizing as speculative, and ultimately rejecting, the reports of two of the experts who testified to the existence of a causal relationship.

In the words of the majority of the court, Judge Egan dissenting, "Absent sufficient medical evidence to establish a causal relationship between [Claimant's] employment and his condition, we are unable on this record to conclude that the full Board's determination lacked a rational basis and was not supported by substantial evidence."

* An insurance carrier can contest, i.e., controvert, a Workers' Compensation claim for a variety of reasons, including, but not limited to, alleging that the injury was not related to work, was self-inflicted or the employee is not injured to the extent that he or she is claiming. An employer can also request that the insurance carrier contest the claim.

** The court also noted General Municipal Law §207-kk creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers incurred them in the course of performing his or her duties, "thereby eliminating the burden of proving causation" on the firefighter and places the burden of rebutting the presumption on the party controverting the claim. However, the explained the court, because §207-kk applies only in the event of the total or partial disability or death of a paid member of a fire department employed by cities have a population of one million or more, "the presumption is inapplicable here."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_06013.htm

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