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In re Claim of Tucker

Supreme Court of New York, Third Department

August 3, 2017

In the Matter of the Claim of RICHARD D. TUCKER, Appellant,

          Calendar Date: June 2, 2017

          Law Firm of Alex Dell, PLLC, Albany (Courtney E. Holbrook of counsel), for appellant.

          Walsh & Hacker, Albany (Sean F. Nicolette of counsel), for City of Plattsburgh Fire Department and another, respondents.

          Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.


          PETERS, P.J.

         Appeal from a decision of the Workers' Compensation Board, filed October 22, 2015, which ruled that claimant did not sustain a causally related injury and denied his claim for workers' compensation benefits.

         Claimant worked as a firefighter and medical technician for the City of Plattsburgh, Clinton County for 24 years. After being diagnosed with prostate cancer at the age of 51, claimant 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, after a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) established the claim for occupational prostate cancer. Following a majority decision, with one Board panel member dissenting, and ensuing mandatory full Board review, the full Board, based upon the divergent medical opinions in the record and the nature of claimant's illness, rescinded the WCLJ's decision and appointed an impartial specialist in the field of oncology to offer an opinion on causal relationship. Following that evaluation, the same Board panel, with one dissenting member, reinstated and affirmed the WCLJ's decision establishing the claim. Upon its mandatory review, the full Board determined in a majority decision 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 employment as a firefighter. The full Board therefore rescinded the WCLJ's decision, and this appeal by claimant ensued.

         It is well established that, "[a]s the party seeking benefits, claimant bore the burden of establishing - by competent medical evidence - a causal connection between his employment and the claimed disability" (Matter of Qualls v Bronx Dist. Attorney's Off., 146 A.D.3d 1213, 1214 [2017], lv denied 29 N.Y.3d 906');">29 N.Y.3d 906');">29 N.Y.3d 906');">29 N.Y.3d 906 [2017]; see Matter of Bordonaro v Genesee County Sheriff's Off., 148 A.D.3d 1507, 1508 [2017]) [1]. "In this regard, while the Board cannot rely upon expert opinion evidence that amounts to nothing more than pure speculation, the Workers' Compensation Law does not require that medical opinions be expressed with absolute or reasonable medical certainty" (Matter of Qualls v Bronx Dist. Attorney's Off., 146 A.D.3d at 1214 [internal quotation marks, brackets and citations omitted]; accord Matter of Estate of Harris v General Elec. Co., 115 A.D.3d 1133, 1134 [2014]). Nevertheless, "[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" (Matter of Granville v Town of Hamburg, 136 A.D.3d 1254, 1255 [2016] [internal quotation marks and citations omitted]; see Matter of Norton v North Syracuse Cent. School Dist., 59 A.D.3d 890, 891 [2009]).

         Claimant responded to approximately 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, although claimant indicated that he is not specifically aware of the various chemicals or toxins to which he might have been exposed. In addition to periodically working for a friend in the plumbing and heating business to clean furnaces and other related tasks, claimant, prior to becoming a firefighter, was employed as a deliverer of kerosene for at least eight years.

         In a March 2009 report, Michael Lax, a board-certified occupational disease specialist, opined that claimant was likely exposed to a wide range of materials in the course of fighting fires, including polycyclic aromatic hydrocarbons and diesel fumes from the fire trucks, each of which are likely to have been of major importance with regard to the cause of his prostate cancer [2]. Lax also noted 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.

         He also acknowledged, however, that claimant had never received medical treatment for smoke inhalation and that he could have been exposed to carcinogens while cleaning furnaces in the plumbing and heating business. Nevertheless, Lax testified that, notwithstanding other plausible risk factors such as claimant's age, claimant's prostate cancer was likely caused by cumulative exposure to carcinogenic materials during his work as a firefighter.

         In contrast to the views expressed by Lax, the employer's consultant, Warren Silverman, a board-certified specialist in internal, occupational and forensic medicine who reviewed claimant's medical records, reported 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. Silverman stated 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. He therefore could not conclude that there was a causal relationship and opined that any attempt to do so would be based upon speculation. Silverman testified that there are also no studies that establish causation between firefighting and prostate cancer and that this is in large part because prostate cancer is already the second leading cause of death for men before even taking into consideration any occupational risks or other risk factors. Silverman also stated that there was nothing specific about claimant's firefighting duties suggesting an increased risk for an occupationally-related disease compared to the general population.

         Lawrence Garbo, an oncologist appointed as the impartial specialist by the full Board, reported, based upon his review of the relevant record evidence, that claimant did not present with 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%." Garbo stated that although claimant had been exposed to inhalant toxins, polycyclic aromatic hydrocarbons and diesel exhaust, he could not accurately quantify, or describe the extent of, that exposure. Nevertheless, Garbo 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." In his testimony, however, Garbo conceded 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 [3]. In view of the foregoing conflicting evidence, including the prevalence of prostate cancer and the other possible explanations for claimant contracting the condition (compare Matter of Estate of Harris v General Elec. Co., 115 A.D.3d at 1134), we find that the full Board acted within its discretion in characterizing as speculative and ultimately rejecting the reports of Lax and Garbo with regard to the existence of a causal relationship (see Matter of Qualls v Bronx Dist. Attorney's Off., 146 A.D.3d at 1214-1215; Matter of Mayette v ...

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