Calendar Date: November 17, 2017
Sussman and Associates, Goshen (Michael H. Sussman of
counsel), for appellant.
Sullivan Keenan Oliver & Violando, LLP, Albany (Ashley M.
Hart of counsel), for Liberty Central School District,
Before: Peters, P.J., Egan Jr., Lynch, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
May 26, 2016, which reversed a decision of a Workers'
Compensation Law Judge directing further development of the
underlying facts of this matter are more fully set forth in a
prior decision of this Court (131 A.D.3d 1291');">131 A.D.3d 1291 ).
Briefly stated, claimant applied for and was awarded
workers' compensation benefits in 2004 based upon her
claim for hypersensitivity reaction to occupational presence
of fungi. In 2006, the claim was amended to include multiple
chemical sensitivity and awards for a marked disability were
continued. Following hearings in 2010, a Workers'
Compensation Law Judge (hereinafter WCLJ) determined that
claimant had a causally-related permanent total disability.
By decision filed in December 2012, the Workers'
Compensation Board reversed the finding of a permanent total
disability, crediting the opinion of Theodore Them, an
impartial specialist referred by the Board to examine
claimant, that claimant had no continuing causally-related
disability. Claimant did not timely perfect her appeal of
that decision to this Court.
January 2013, claimant requested a hearing to determine,
among other things, whether she suffered from a lesser degree
of disability. A WCLJ thereafter directed further development
of the record on this point, but the Board reversed on the
ground that the December 2012 decision resolved the issue of
claimant's degree of disability by finding that claimant
had no further causally-related disability. This Court
affirmed the Board's decision, finding that
claimant's failure to appeal the Board's December
2012 decision precluded her from challenging the Board's
finding of no further causally-related disability
(id. at 1292).
2014, physician Jeffrey Newton evaluated claimant for the
purpose of assessing her "psychological treatment needs
in connection with her longstanding multiple chemical
sensitivity syndrome." In his evaluation report, Newton
diagnosed claimant as suffering from consequential adjustment
disorder with anxious and depressed mood. Based upon
Newton's opinion, claimant requested a hearing regarding
a claim for consequential psychological injury. A WCLJ found
prima facie evidence for consequential depression and
directed the employer to obtain an independent medical
examination on this issue. Upon review, the Board reversed,
finding that further development of the record was not proper
inasmuch as its December 2012 decision established that
claimant did not have a further causally-related disability,
without which there could be no consequential condition.
Claimant now appeals.
reverse. "Generally, the Board's determination of
whether or not to allow further development of the record on
a particular issue will not be disturbed absent an abuse of
discretion" (Matter of Finchum v Colaiacomo, 1
A.D.3d 672, 673  [citations omitted]; accord Matter
of Prince v Verizon N.Y., 153 A.D.3d 1111, 1111 ).
Here, the Board found that further development of the record
was improper because it had determined in 2012 that claimant
no longer suffered from a causally-related disability and,
without a further causally-related disability, there could be
no disability from which a consequential condition could
arise. However, the record reflects that claimant established
a claim for work-related hypersensitivity to the presence of
fungi in 2004 and that the claim was amended to include
multiple chemical sensitivity in 2006. In the 2012 decision,
the Board noted that, although Them was of the opinion that
multiple chemical sensitivity is not a medically-recognized
condition, he credibly testified that he was capable of
independently determining, based upon a physical examination,
whether claimant was disabled. The Board ultimately relied on
Them's physical examination in concluding that claimant
no longer suffered from a causally-related disability but, in
so doing, made no findings suggesting that claimant did not
suffer from a causally-related disability from 2004 to 2011.
these circumstances, we conclude that the Board's finding
that, as of 2012, claimant no longer had a causally-related
disability does not preclude claimant from raising the issue
of a psychological injury consequentially related to her
prior established claims of hypersensitivity reaction to
fungi and multiple chemical sensitivity . Those conditions
were established in 2004 and 2006 and claimant received
related benefits for over 10 years, and the record contains
evidence that claimant was diagnosed and treated for
psychological injuries during that time. With regard to the
issue of causation, while Newton stated in his 2014
evaluation that claimant's diagnosed adjustment disorder
is related, in part, to the loss of the covered
psychotherapeutic counseling that she had been receiving
prior to the December 2012 finding of no further
causally-related disability, he also opined that
claimant's psychological condition "is clearly
causally related to [her]... work place originating
condition." Accordingly, we conclude that the Board
abused its discretion by finding that further development of
the record on this issue was improper based upon its 2012
decision, and the matter must be remitted for further
Jr., Lynch, Clark and Rumsey, JJ., concur.
that the decision is reversed, without costs, and matter
remitted to the Workers' Compensation Board for further