Case Results

  • Chrostowski v. Pinnacle Environmental Corp., 169 A.D.3d 1213:
    Claimant appealed disallowance of claim as time barred. Claimant was an asbestos handler. Claimed repetitive stress to shoulder, wrists, and knees. The claim was filed in 2018. The Board set date of disablement in 2009 making the claim untimely. The Board relied upon 2009 medical reports from a physician that the claimant saw for a separate respiratory condition and another report indicating that the claimant had a positive Tinel’s at both wrists. This report indicated that hand numbness and weakness was related to the claimant’s work, but further testing was recommended to properly diagnose a condition. The Court noted that carpal tunnel syndrome was subsequently diagnosed but in records that did not indicate the etiology of the condition, and none of these reports mentioned the shoulder or knees. Subsequent reports mentioned those sites but still did not opine causal relationship. In light of this, it could not be said that substantial evidence supported the 2009 date of disablement. Reversed and remitted.
  • Clancy v. Park Line Asphalt Maintenance, 191 A.D.3d 1088:
    Claimant appealed disallowance of occupational disease claim. In 2000 the claimant was diagnosed with CTS and herniated cervical discs. The claimant was awarded SSD, had surgeries, then benefits stopped when she began working full duty as an office manager where she typed 6-7 hours, 5 days a week. The claimant then had several additional surgeries. She felt that her symptoms worsened in 2016 and she stopped working in 2018 with a medical opinion that her work was worsening her symptoms. The claimant filed a compensation claim and was terminated a few months later. The treating physicians testified that her work exacerbated her pre-existing conditions. An IME, who was unaware of claimant’s specific job duties, indicated that her condition was unrelated to her work. A WCLJ disallowed the claim finding her pre-existing issues were neither dormant nor non disabling. In affirming this ruling the Board found that, while the claimant was able to fully work, she was not “fully capable of performing all kinds of work” as she had sitting and standing restrictions. In reversing the Board the Court held that it cannot be said that the claimant’s pre-existing condition was disabling in a compensation sense, as the pre-existing condition did not prevent the claimant from performing any aspect of her job and the fact that the claimant was previously symptomatic did not warrant a different conclusion.
  • Lewandowski v. Safeway Environmental Corp., 190 A.D.3d 1072:
    Claimant performed clean-up at the World Trade Center in 2002. He stopped working in 2015 and filed a claim for COPD. An IME opined that the claimant did not have COPD, but if he did have it, it would be attributed to smoking for 32 years. The WCLJ disallowed the claim, crediting the IME. The Board modified, found sufficient evidence for GERD and PTSD and returned for development of the record on PTSD but found insufficient evidence for COPD. In a subsequent reserve decision the claim was established for GERD and PTSD. The Board then modified that decision to establish agoraphobia with panic disorder, rescinding the PTSD without prejudice. Two years later, PFME was again found for COPD and the claim was later established for PTSD and COPD. The carrier appealed the establishment of the COPD as the medical had not changed. The Board then rescinded establishment of COPD, noting the prior ruling of insufficient evidence for COPD and that subsequent medical reports did not provide any further explanation on causal relationship. Claimant had also sought to modify the date of disablement and average weekly wage. This was denied as the request to address the date of disablement was not found to be timely and the request to change the AWW was based upon the date of disablement. The Board chose not to reopen in the interest of justice, noting that the claimant was represented when this AWW was set. Concerning the COPD, claimant argued that the prior ruling was simply a PFME ruling and that the Board gave the prior ruling preclusive effect, when it ruled that the subsequent reports did not contain any further evidence of causal relationship. The Court did not agree. The Court held that while the prior ruling did not expressly disallow the COPD, it “clearly found” that there was no causally related COPD and the Board considered the later medical evidence and found it lacking. However, the Court sided with claimant on the date of disablement and AWW. A reopening in the interest of justice is in the Board’s discretion and the Board generally has great latitude in setting a date of disablement. However, in the case of a world trade center claim, “the Board is statutorily required to select ‘the date of disablement that is more beneficial to the claimant.’” As it did not appear that this was done, it was an abuse of discretion not to consider the claimant’s request, especially since the AWW had been set without prejudice.
  • Valdez v. Delta Airlines,197 A.D. 3d 1382:
    Claimant, a flight attendant, developed skin and respiratory issues caused by her work uniform. The WCLJ established an occupational disease for dermatitis and reactive airway disease. The Board affirmed establishment of the claim. Claimant suffered from dermatitis due to chemical dyes prior to wearing her work uniform but there was no indication that the chemical that the claimant previously had reactions to was in the work uniform. The Board credited claimant’s testimony that her symptoms worsened when she wore the uniform and that of her physician who indicated that the timing of her symptoms were consistent with work exposure. The Court held that substantial evidence supported the Board’s ruling.