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In the Matter of the Claim of Bobby C. Maye v. Alton Manufacturing

State of New York Supreme Court, Appellate Division Third Judicial Department


December 8, 2011

IN THE MATTER OF THE CLAIM OF BOBBY C. MAYE, APPELLANT,
v.
ALTON MANUFACTURING, INC., RESPONDENT, AND
SPECIAL FUND FOR REOPENED CASES, RESPONDENT. WORKERS' COMPENSATION BOARD, RESPONDENT.

Appeal from an amended decision of the Workers' Compensation Board, filed February 16, 2010, which ruled that claimant had no further causally related disability.

The opinion of the court was delivered by: Rose, J.P.

MEMORANDUM AND ORDER

Calendar Date: October 18, 2011

Before: Rose, J.P., Lahtinen, Kavanagh, McCarthy and Garry, JJ.

After claimant retired in March 1994, his work-related occupational hearing loss was established with a 59.5% binaural hearing schedule loss of use and the case was closed in 1997. In 2005, the claim was transferred to the Special Fund for Reopened Cases. In 2007, claimant submitted a request for further action, asserting that he now suffers from a causally related 71.56% binaural hearing loss. Following hearings, a Workers' Compensation Law Judge found, among other things, that claimant had established that his increased hearing loss was causally related to his employment. Upon review, the Workers' Compensation Board reversed in an amended decision, and claimant now appeals.

Claimant bears the burden of establishing that a causal relationship exists between his injury and his employment (see Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890, 890 [2009]). Here, claimant relied on the medical report of his treating otalaryngologist, who stated unequivocally that "[claimant's] hearing loss is 100% causally related to his job." This opinion, based on a 2007 examination of claimant, specifically noted the lack of any causes of his hearing loss that were unrelated to his employment. The medical opinion of claimant's treating physician was neither speculative nor a general expression of possibility (see e.g. Matter of Benjamin v Sprint/Nextel, 67 AD3d 1277, 1278 [2009]); Matter of Dechick v Auburn Correctional Facility, 38 AD3d 1094, 1095 [2007]), and it "signif[ies] 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 [2008] [internal quotation marks and citation omitted]; see Matter of Benjamin v Sprint/Nextel, 67 AD3d at 1278). Inasmuch as there was no conflicting medical evidence presented here, the Board's rejection of the treating physician's uncontroverted medical opinion on causation was improper (see Matter of Shkreli v Initial Contract Servs., 55 AD3d 1067, 1070 [2008]; Matter of Lincoln v Consolidated Edison Co. of N.Y., Inc., 46 AD3d 1176, 1177-1178 [2007]; Matter of Sullivan v Sysco Corp., 199 AD2d 849, 851 [1993]).

Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur.

ORDERED that the amended decision is reversed, with costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court

20111208

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