Calendar Date: January 12, 2018
Geoffrey Schotter, New York City, for appellant.
William O'Brien, State Insurance Fund, New York City
(Kelly A. O'Neill of counsel), for Nozbestos Construction
Corporation and another, respondents.
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Pritzker,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
August 11, 2016, which ruled that there was no causal
relationship between claimant's occupational lead
exposure and his loss of earnings.
an asbestos handler who assisted with the recovery efforts at
the World Trade Center site in 2001, has a Workers'
Compensation Law article 8-A claim established for injuries
sustained during those recovery efforts in the form of
depression, asthma, rhinitis, gastroesophageal reflux disease
and posttraumatic stress disorder. On July 28, 2012,
claimant's employment as an asbestos remover with Abatech
Industries, his last employer, was terminated. Claimant
subsequently filed an occupational disease claim for lead
exposure and toxicity alleging that he had continuously
worked in a lead-contaminated environment for over 12 years.
Following a hearing, a Workers' Compensation Law Judge
(hereinafter WCLJ) established his occupational disease claim
for lead exposure, set a date of disablement as July 28, 2012
and found that claimant was last exposed to lead on November
3, 2011 while working for Nozbestos Construction Corporation.
Thereafter, the WCLJ directed the occupational disease claim
to travel together with claimant's established
Workers' Compensation Law article 8-A claim on the issue
of proper awards . Following a hearing on the extent to
which claimant was entitled to benefits, the WCLJ found,
among other things, that claimant has no causally-related
loss of earnings because his July 28, 2012 cessation of
employment resulted from his article 8-A claim and was
unrelated to lead exposure and his occupational disease
claim. Upon administrative review, the Workers'
Compensation Board upheld that determination. Claimant
appeals, contending that his loss of earnings is
causally-related, at least in part, to his occupational lead
affirm. Whether a claimant's occupational disability in a
given case is causally-related to his or her loss of earnings
is a factual question for determination by the Board and will
be upheld if supported by substantial evidence (see
Matter of Parrelli v Atlantic Constr., 67 A.D.3d 1265,
1265 ; Matter of Ilovar v Consolidated Edison,
28 A.D.3d 1026, 1027 ; Matter of Yamonaco v Union
Carbide Corp., 42 A.D.2d 1014, 1015 ). Claimant
testified that, in July 2012, he was told not to return to
work because he was unable to continue to work wearing a mask
due to his excessive coughing. In addition to self-reported
memory problems, claimant described an incident a few days
before his employment ended in which he cut some electric
cables by mistake, resulting in him sustaining an electric
shock and burning his tools.
Wilk-Rivard, claimant's treating physician, reported in
both February and June 2012 that, although claimant was
partially disabled, he was able to continue working so long
as he avoided lead exposure. In September and November 2012,
after claimant had stopped working, Wilk-Rivard reported that
claimant could return to work under the same restriction of
avoiding lead exposure. Janet Rucker, a physician who has
treated claimant since June 2010, opined in August 2013 that
while claimant had a possible cognitive defect due to
low-moderate level metal toxicity, his cognitive difficulties
are likely multifactorial with components of pseudodementia
attributable to depression and, to that end, that claimant
was aggressively working with a psychiatrist. Similarly, John
Meyer, a physician who provided ongoing treatment to
claimant, reported in November 2015 that, although
claimant's lead exposure could be "partially
contributory to [his] inability to work, "
claimant's medical conditions stemming from his work at
the World Trade Center site and his prior history as an
asbestos handler are the principal causes of his disability.
Although other physicians who treated claimant also reported
that claimant was disabled and unable to work, those
physicians did not conclusively attribute his disability to
lead exposure. Given the lack of contemporaneous medical
evidence demonstrating that claimant's inability to
continue working was caused by lead exposure and that
claimant's treating physician indicated in 2012 that he
could continue to work so long as he avoided lead exposure,
we find that substantial evidence supports the Board's
factual finding of no causally-related loss of earnings, and
the Board's decision will therefore not be disturbed
(see Matter of Parrelli v Atlantic Constr., 67
A.D.3d at 1265; Matter of Ilovar v Consolidated
Edison, 28 A.D.3d at 1027; compare Matter of
Cammarata v Caldwell & Cook Inc., 19 A.D.3d 884, 885
; Matter of Fallon v Johns-Manville Sales
Corp., 103 A.D.2d 955, 955 ).
P.J., McCarthy, Egan Jr. and Pritzker, JJ., concur.
that the decision is affirmed, without costs.
 As a result of his Workers'
Compensation Law article 8-A claim, claimant was found to
have a permanent partial disability and was awarded
workers' compensation benefits commencing July 28, 2012.
Claimant also has a third and unrelated workers'