Application for workers' compensation benefits for hearing loss alleged due to prolonged exposure to workplace noise denied

Although a Workers' Compensation Law Judge established the applicant's claim for occupational binaural hearing loss, upon administrative appeal the Workers' Compensation Board reversed, finding that claimant did not meet his burden of establishing a relationship between his injury and his employment by competent medical evidence and disallowed the claim.

 

Matter of DeWolf v Wayne County

2024 NY Slip Op 03531

Decided on June 27, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 27, 2024

CV-23-2014

[*1]In the Matter of the Claim of Andrew P. DeWolf, Appellant,

v

Wayne County et al., Respondents. Workers' Compensation Board, Respondent.

Calendar Date:May 28, 2024
Before:Garry, P.J., Egan Jr., Lynch, Fisher and Powers, JJ.

Andrew P. DeWolf, Lyons, appellant pro se.

 Hamberger & Weiss LLP, Rochester (Joseph P. DeCoursey of counsel), for Wayne County and another, respondents. 

Garry, P.J. 

Appeal from a decision of the Workers' Compensation Board, filed June 6, 2023, which ruled that claimant did not sustain a causally-related occupational disease and denied his claim for workers' compensation benefits.

Claimant worked in the field as an emergency medical technician for Wayne County for roughly 15 years. In August 2020, he filed a claim for workers' compensation benefits, alleging that he sustained hearing loss due to prolonged exposure to workplace noise. Following a hearing, the Workers' Compensation Law Judge established the claim for occupational binaural hearing loss. Upon administrative appeal, the Workers' Compensation Board reversed, finding that claimant did not meet his burden of establishing a relationship between his injury and his employment by competent medical evidence, and disallowed the claim. Claimant appeals.[FN1]

We affirm. "To be entitled to workers' compensation benefits for an occupational disease, a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence" (Matter of Velez v Eger Health Care & Rehab Ctr., 217 AD3d 1095, 1096 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Gandurski v Abatech Indus., Inc., 194 AD3d 1329, 1329 [3d Dept 2021]). "To this end, a medical opinion on the issue of causation must signify a probability as to the underlying cause of the claimant's injury which is supported by a rational basis" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920, 922 [3d Dept 2008] [internal quotation marks and citations omitted]; accord Matter of Sanchez v New York City Tr. Auth., 206 AD3d 1428, 1429 [3d Dept 2022]).

Claimant testified that he suffered hearing loss due to repeated exposure to loud siren and radio noise at work.[FN2] Claimant testified that he worked full time, sometimes in excess of 60 hours per week, but that he could not quantify how often he was exposed to loud noise. Claimant also could not quantify the decibel level of noise but he did testify that he could carry on a conversation in the vehicle with the siren on. Claimant also testified that he has hunted recreationally for the past 26 years without consistently wearing ear protection.

In support of his claim, claimant offered the medical narratives and deposition testimony of otolaryngologists Michael DeCicco and Benjamin Crane.[FN3] DeCicco examined claimant in May 2021 and diagnosed moderately severe to severe bilateral sensorineural hearing loss. DeCicco testified that, based upon the history that claimant provided, "there was a very good chance" that claimant's hearing loss was related to noise exposure at work. DeCicco also testified that he was not provided any information as to the decibel levels that claimant was exposed to nor the duration of the exposure and that he was not aware of claimant's use of firearms. Crane examined claimant in July 2021 and concluded that claimant's [*2]hearing loss was "likely related to noise exposure." Crane testified, however, that he did not have an opinion as to whether claimant's hearing loss was related to noise at work because claimant had two sources of noise exposure, "work and recreational[ ]."

Crane further noted the lack of information regarding the level and duration of claimant's exposure to noise at work. Although Crane concluded that noise exposure at work "could have and I guess I believe it did" play a role in claimant's hearing loss, he added that, "as mentioned, I don't have the details on how much noise exposure it actually was."

In light of the foregoing, we conclude that the Board acted within its authority in rejecting claimant's medical evidence of a causal relationship as speculative (see Matter of Tucker v City of Plattsburgh Fire Dept., 153 AD3d 984, 988 [3d Dept 2017], lv denied 30 NY3d 906 [2017]; Matter of Mayette v Village of Massena Fire Dept., 49 AD3d at 922). We note that the Board was entitled to reject claimant's medical evidence even though there was no other medical evidence presented on the issue of causation (see Matter of Glowczynski v Suburban Restoration Co., Inc., 174 AD3d 1236, 1238 [3d Dept 2019]; Matter of Bradley v US Airways, Inc., 58 AD3d 1043, 1045 [3d Dept 2009]).

Finally, contrary to claimant's contention that the Board lacked jurisdiction to decide his claim, the Legislature has granted the Board the sole "power to hear and determine all claims for compensation" (Workers' Compensation Law § 142 [1]; see NY Const, art I, § 18). Further, we reject claimant's contention that he was denied due process "[a]s the record reflects that [he] was afforded the opportunity to be heard at a meaningful time and in a meaningful manner" (Matter of Spillers v Health & Hosp. Corp., 225 AD3d 1100, 1102 [3d Dept 2024] [internal quotation marks and citations omitted]; see Matter of Narine v Two Bros. for Wholesale Chicken Inc., 198 AD3d 1040, 1044 [3d Dept 2021]). Claimant's remaining contentions, to the extent that they are properly before us, have been considered and found to be without merit.

Egan Jr., Lynch, Fisher and Powers, JJ., concur.

ORDERED that the decision is affirmed, without costs. 

FOOTNOTES

Footnote 1: To the extent that claimant challenges the denial of his application for reconsideration and/or full Board review, he did not file a notice of appeal from that decision and, therefore, those issues are not properly before us (see Matter of Petrillo v Comp USA, 131 AD3d 1282, 1282 n [3d Dept 2015]).

Footnote 2: We decline claimant's request that we take judicial notice of information contained in certain documents and websites referred to for the first time on appeal (see Fidelity Natl. Tit. Ins. Co. v Legend Abstract Corp., 171 AD3d 705, 706 [2d Dept 2019]; Shon v State of New York, 75 AD3d 1035, 1038 [3d Dept 2010]).

Footnote 3: Claimant's contention that the taking of the depositions of his medical experts telephonically was improper (see CPLR 3115 [b]) was waived by his failure to object at the time that the depositions were taken (see CPLR 3115 [b]; Matter of Washington v Montefiore Hosp., 7 AD3d 945, 947-948 [3d Dept 2004]).

 

CELEBRATE THE FOURTH OF JULY HOLIDAY AND STAY WELL

Also known as Independence Day — this date has been a federal holiday in the United States since 1941.

Workers' Compensation Board ruled, among other things, that claimant for Workers' Compensastion had voluntarily removed himself from the labor market and was not entitled to postretirement wage loss benefits

Applicant for Workers' Compensation benefits continued to work on restricted duty as a union representative in an administrative capacity until he opted to take a normal service retirement effective May 14, 2020 claimed he had involuntary retired as a result of the back injuries he sustained in 2009. The Board rescinded the award of lost wages and replaced it with a finding of no compensable lost time.

The Appellate Division denied Applicant's challenge to the Board's decision. In affirming, the court explained "Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers' compensation benefits unless the claimant's disability caused or contributed to the retirement" and "Although the absence of evidence of medical advice to retire may be a relevant factor in determining whether a particular claimant's retirement constituted a voluntary withdrawal from the labor market, medical advice to retire is not ... an essential element for a finding that a claimant's compensable injury played a role in the decision to retire".

Decided and Entered:June 27, 2024

CV-23-1524

[*1]In the Matter of the Claim of John T. Carroll, Appellant,

v

Nassau County Police Department et al., Respondents. Workers' Compensation Board, Respondent.

Calendar Date:June 5, 2024
Before:Pritzker, J.P., Lynch, Ceresia, Fisher and Mackey, JJ.

Fusco, Brandenstein & Rada, PC, Woodbury (Jesse A. Sigismonti of counsel), for appellant.

Vecchione, Vecchione, Connors & Cano, LLP, Garden City Park (Michael F. Vecchione of counsel), for Nassau County Police Department and another, respondents.

Fisher, J.

Appeal from a decision of the Workers' Compensation Board, filed April 5, 2023, which ruled, among other things, that claimant had voluntarily removed himself from the labor market and was not entitled to postretirement wage loss benefits.

In March 2009, claimant, a police officer and union representative, injured his back and left knee while making an arrest, and resultantly underwent a spinal surgery (laminectomy and discectomy) on May 4, 2010. He returned to work in 2011 on restricted administrative duty, and later that year resumed the full-time duties of a police officer until July 2019, when he was again put on restricted duty. Claimant continued to work on restricted duty as a union representative in an administrative capacity until he opted to take a normal service retirement effective May 14, 2020, and thereafter raised the issue of involuntary retirement as a result of the back injuries he sustained in 2009.

A hearing was held at which claimant testified, explaining his restricted light job duties and that he had retired involuntarily due to the ongoing and worsening back pain and symptoms that he experienced while performing those duties, notwithstanding the employer's accommodation of his back condition, and on the advice of his treating orthopedic surgeon. Claimant further testified that his position required sitting approximately five to six hours per day and worsened his symptoms, and that taking breaks or standing to alleviate his pain was not always feasible. The commanding officer of the medical administration office also testified regarding claimant's administrative duties, stating that he was permitted to stand and stretch to alleviate his symptoms and that there was no time limitation on how long he could remain on restricted duty status. Deposition testimony and medical records and reports were submitted in support of claimant's back injury. Specifically, claimant's treating orthopedic surgeon, who began treating claimant in February 2019, testified that claimant had a progressively worsening disability of 33.3% in February 2019 that, as of August 2020, left him 75% disabled. The orthopedist diagnosed claimant with multi-level spinal compression, lumbar stenosis, disc degeneration and radiculopathy, and further testified that retirement had been necessary because claimant's restricted job duties involved sitting and sedentary work, which were "very difficult" and provoked his back symptoms. Based on this, the orthopedist opined that claimant could only tolerate part-time sedentary work, he could not sit for full days and that he should not sit for more than one hour at a time. Claimant's pain management specialist examined him six or seven times between January and November 2020, and found — based upon these examinations, the treating orthopedist's disability calculation, an MRI report and claimant's complaints — that he had a mild/moderate disability of 33.3% and that his condition had stabilized, noting that he had never [*2]advised claimant to retire.

The employer and its workers' compensation carrier procured an independent medical examination of claimant that was performed eight months after his retirement in January 2021, by an orthopedic surgeon (hereinafter the carrier's consultant) who reviewed his medical records and submitted a report; the report recommended continuing physical therapy but did not offer an opinion regarding claimant's degree of disability, ability to perform his restricted job duties with accommodations at the time of his retirement or whether retirement was medically advised. The report recorded claimant's ongoing complaints of low back pain, pain radiating down his right leg and pain in his mid-back to the right buttocks and posterior thigh and lateral leg numbness and tingling, and included a diagnosis of right side sciatica and postoperative status. The carrier's consultant, who conceded that he had no recollection of the examination, later testified and, adopting the content of his report, opined that claimant had a moderate to marked disability, had limited range of motion with pain, had not reached maximum medical improvement and that he should continue physical therapy and avoid repetitive lifting and prolonged standing, walking and stair climbing.

A Workers' Compensation Law Judge (hereinafter WCLJ) found that although claimant had not been forced by the employer to retire and the employer had attempted to accommodate his condition, even his modified duties were too painful and, accordingly, he had involuntarily retired primarily due to his disability that resulted from the 2009 injury. The WCLJ held in abeyance an award for lost wages from claimant's May 14, 2020 retirement until December 7, 2020, pending further review of medical records, and made an award of continuing lost wage payments at a 50% temporary partial disability rate for the period of December 7, 2020 through December 30, 2022 (the day after the final hearing). On administrative appeal, the Workers' Compensation Board modified the WCLJ's decision, concluding that claimant's disability did not prevent him from performing his light duty assignment with accommodations, and that he had voluntarily retired. The Board rescinded the award of lost wages and replaced it with a finding of no compensable lost time. Claimant appeals.

We affirm. "Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers' compensation benefits unless the claimant's disability caused or contributed to the retirement" (Matter of Losquadro v Nassau County Police Dept., 225 AD3d 1083, 1084 [3d Dept 2024] [internal quotation marks and citations omitted]; accord Matter of Digbasanis v Pelham Bay Donuts Inc., 224 AD3d 1047, 1048-1049 [3d Dept 2024]; Matter of Vankoevering v New York State Canal Corp., 211 AD3d 1301, 1302 [3d Dept 2022]). "Although the absence of evidence of medical advice to retire may be a relevant factor in determining whether a particular [*3]claimant's retirement constituted a voluntary withdrawal from the labor market, medical advice to retire is not . . . an essential element for a finding that a claimant's compensable injury played a role in the decision to retire" (Matter of Evans v Jewish Home & Hosp., 289 AD2d 795, 796 [3d Dept 2001] [internal citations omitted]), but there must "be some evidence that the claimant's disability caused or contributed to the retirement" (Matter of Vankoevering v New York State Canal Corp., 211 AD3d at 1302 [internal quotation marks, brackets and citations omitted]). "Whether a retirement or withdrawal from the labor market is voluntary is a factual determination to be made by the Board" (Matter of Rivera v Joseph L. Balkan, Inc., 193 AD3d 1214, 1215 [3d Dept 2021] [internal quotation marks and citations omitted]). "[T]he Board's determination of that issue will not be disturbed if supported by substantial evidence [and, to that end,] . . . as the sole arbiter of witness credibility, the Board has broad authority to resolve factual issues based on credibility of witnesses and draw any reasonable inference from the evidence in the record" (Matter of Saporito v Office of Ct. Admin., 217 AD3d 1031, 1032-1033 [3d Dept 2023] [internal quotation marks and citations omitted]).

In finding that claimant had voluntarily retired, the Board credited the opinions of claimant's pain management specialist that he had a 33.3% disability and the carrier's consultant that he had a moderate to marked disability over that of his treating orthopedist that his disability level progressively increased to 75% around the time of his retirement and required that he retire, an assessment made without an awareness of the accommodations being made in his light duty assignment. The Board noted that claimant had been able to work full time as a police officer for years after his 2010 surgery and was able to tolerate the restricted duty assignment that began in 2019, in which he was permitted to stand, walk and stretch as needed without repercussions, finding no persuasive evidence that he was having difficulty performing those duties before he retired. Contrary to claimant's argument, the Board, not the WCLJ, "is the sole arbiter of witness credibility" and "has the exclusive province to resolve conflicting medical opinions and to evaluate medical evidence before it" and "was not bound by the WCLJ's determinations" (Matter of Ghaffour v New York State Black Car Operators, 224 AD3d 1021, 1023 [3d Dept 2024] [internal quotation marks, brackets and citations omitted]). Although the WCLJ credited claimant's testimony and the treating orthopedist's finding that the light duty work was too painful and that retirement was necessary in concluding that he had involuntarily retired, the Board was entitled to draw different inferences and discount that conclusion based upon the other medical evidence and testimony and the orthopedist's concession that he was unaware that claimant was permitted [*4]to take breaks to move, stand and stretch as needed, which would alleviate his symptoms caused by prolonged periods of sitting.

We discern no error in the Board's conclusion that this case more closely resembles the facts in Employer: County of Nassau Civil Service II (2022 WL 18359761, 2022 NY Wrk Comp LEXIS 6972 [WCB No. G296 5754, Dec. 30, 2022]), than the facts in Employer: County of Nassau Civil Service I (2020 WL 6200143, 2020 NY Wrk Comp LEXIS 14471 [WCB No. G257 8586, Oct. 19, 2020]). This conclusion was based upon the Board's findings that claimant was able to perform his light duty assignment with accommodations at the time he retired, and that his treating orthopedist's opinion regarding his progressively worsening disability and inability to perform the light duty work was not credible as it was made without an understanding regarding his accommodations and conflicted with the credited opinions of his pain management specialist and the carrier's consultant and was not supported by the record. Notably, "this Court will not disturb a finding of the Board where it is supported by substantial evidence, even where[, as here,] a contrary conclusion of the WCLJ is also supported by substantial record evidence" (Matter of Ghaffour v New York State Black Car Operators, 224 AD3d at 1023-1024). Under the circumstances presented and deferring to the Board's credibility determinations, we find that substantial evidence supports the Board's finding that claimant's work-related injuries did not cause or contribute to his decision to retire and, given that he voluntarily withdrew from the labor market, claimant was not entitled to an award of reduced earnings subsequent to the date of his retirement (see Matter of Losquadro v Nassau County Police Dept., 225 AD3d at 1085). In view of the foregoing, we find no reason to disturb the Board's decision (see Matter of Farrulla v SUNY at Stony Brook, 193 AD3d 1206, 1208 [3d Dept 2021]).

Pritzker, J.P., Lynch, Ceresia and Mackey, JJ., concur.

ORDERED that the decision is affirmed, without costs.

New York State Comptroller DiNapoli releases certain school district and municipal audits

 

On July 3, 2024, New York State Comptroller Thomas P. DiNapoli issued the following local government and school audits:

Ardsley Union Free School District – Financial Management (Westchester County)

The board and district officials did not effectively manage the district’s fund balance and reserves. As a result, the district levied more taxes than needed to fund operations. The board and district officials overestimated appropriations from 2017-18 through 2021-22 (excluding 2018-19) by an average of $4.1 million, totaling $16.5 million. In addition, the district appropriated fund balance at an annual average of $2.9 million from 2017-18 through 2021-22 while it had an operating surplus in each of those years averaging $1.1 million. As a result, the appropriated fund balance was not used to fund operations and taxpayers were taxed more than necessary.

Rye City School District – Payroll (Westchester County)

District officials did not budget for approximately $600,000 of incurred overtime, and generally recorded it as regular salaries instead of overtime. As a result, residents are not being made aware of what the district expects to incur in overtime costs and the budgets are not transparent. Auditors analyzed the overtime paid to 15 employees with the highest overtime charges for the audit period and reviewed all of their time records and payments totaling $428,220. Auditors found officials recorded $409,391 of that money as salaries, which precluded officials from monitoring overtime expenditures because they did not know how much overtime was being paid. The district also lacked overtime monitoring policies and procedures and paid six employees $2,097 in overtime wages without proper supporting documentation.

Half Hollow Hills Central School District – Information Technology (IT) Equipment Inventory Records (Suffolk County)

District officials did not always appropriately track, inventory and safeguard IT equipment and IT department staff did not maintain complete inventory records. As a result, district officials cannot assure taxpayers that all IT equipment is adequately accounted for and would be detected if lost, stolen or misused. Auditors selected 100 pieces of equipment (devices) costing $88,223 to confirm their location and that they were properly inventoried and determined that 23% of the equipment was not properly accounted for. Specifically, three IT devices, worth a total of $3,012 could not be located. Another 20 IT devices that cost $19,914 were not listed in the district’s accounting detail report.

Greater Southern Tier Board of Cooperative Educational Services (BOCES) – Capital Assets (Chemung County)

BOCES officials did not properly monitor and account for all capital assets and have not conducted periodic physical inventories in at least 10 years. As a result, officials lack assurance the capital asset records are complete and accurate, and that assets are protected from loss, theft, misuse and obsolescence. Auditors reviewed 50 assets with a combined purchase price totaling approximately $259,900 and determined that 10 assets worth a combined $68,600 had exceptions and eight of those assets, totaling approximately $65,400, did not have required asset tags, were not on the inventory asset list and/or had incorrect locations on the inventory list. In addition, a camcorder with a purchase price of $1,700 could not be located or accounted for and a telecommunications switch with a purchase price of $1,500 was still active on the inventory list but was disposed of in October 2018.

Town of Gorham – Budgeting (Ontario County)

The board did not develop and adopt realistic budgets, a financial plan or fund balance and reserve policies. As a result, the town maintained unreasonable fund balance levels and likely levied more taxes than necessary. From fiscal years 2020 through 2022, the town-wide (TW) general, town-outside-village (TOV) general, TOV highway, sewer and water funds combined generated a total of $1.6 million in operating surpluses. In 2021, sales tax revenues totaling $230,000 were inappropriately recorded in the TW funds instead of the TOV funds, given property taxes were levied in the TOV funds. In addition, an excessive $1.5 million of unrestricted fund balance was maintained in the TW general fund as of Dec. 31, 2022. Lastly, budget transfers were made at year end, rather than as necessary throughout the fiscal year, resulting in appropriation accounts being over expended.

Town of Gorham – Procurement (Ontario County)

Town officials did not always procure goods and services in accordance with town policy, statutory requirements and good business practices. As a result, there is an increased risk that the town paid more than necessary for goods and services or made purchases that were not for town purposes. For example, auditors reviewed 65 individual and aggregate purchases totaling $2.5 million and determined 16 purchases totaling $468,738 were not competitively bid. Officials also did not comply with purchasing policy requirements for 41 purchases totaling $1.4 million. Auditors reviewed all nine professional services vendors totaling $1.1 million and determined officials did not seek competition when procuring any of these vendors. Two of these vendors lacked written agreements detailing the services to be provided and their cost. Auditors also reviewed all 116 credit card purchases totaling $29,562 and determined 12 purchases totaling $3,726 did not have adequate supporting documentation to indicate they were appropriate town purchases.

Renaissance Academy Charter School of the Arts – Non-Payroll Disbursements (Monroe County)

School officials did not ensure that all disbursements were properly reviewed and approved, or adequately supported. Certain disbursements were made without knowing what was purchased or whether the disbursements were for appropriate school purposes. During the period reviewed, the school’s disbursements totaled $4.8 million and although a prior audit and other external audits noted school disbursements lacked adequate supporting documentation, sufficient corrective action was not taken, including adopting adequate written disbursements policies. Auditors found 62% of the non-credit card disbursements tested totaling $276,871 and 86% of the credit card charges tested totaling $43,439 lacked both an itemized invoice or receipt and a documented school purpose. In addition, the chief education officer (CEO) and chief operating officer have the ability to make purchases, prepare checks and modify or delete data in the financial software and the CEO signs checks. The lack of adequate controls increases the risk for disbursements to be made for non-school purposes and accounting records being altered without detection.

Farmingdale Union Free School District – Payroll (Nassau County)

District officials did not properly monitor, approve and control overtime. Officials also did not ensure all overtime payments were necessary and properly supported. As a result, there is a significant risk that employees may have been paid for unnecessary overtime work that could have been avoided with adequate planning. Auditors determined that the board and district officials did not establish adequate overtime controls or adopt written policies and procedures to ensure overtime was incurred only when necessary and unavoidable. They also did not ensure all overtime was preapproved and monitored. The district paid 20 employees $167,034 for nonemergency overtime work, including routine job duties and planned events, without written preapproval and did not budget for overtime separate from other payroll expenditures. As a result, district officials did not have adequate information to properly monitor the overtime budget and expenditures.

Village of Herkimer – Audit Follow Up (Herkimer County)

The purpose of this review was to assess the village’s progress in implementing recommendations in the audit report released in August 2019. Based on limited procedures, the village has demonstrated minimal progress implementing corrective action. Of the seven audit recommendations, one recommendation was partially implemented, and six recommendations were not implemented.

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