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Ruling against mechanic’s widow upheld in asbestos comp case


The widow of an industrial plant mechanic failed to provide medical evidence in a manner that meets state filing requirements to prove that work-related exposure to asbestos caused his lung cancer and subsequent death, a New York appeals court ruled Thursday.

Catherine Johnson’s husband, unnamed in court documents, died in 2015 after being diagnosed with metastatic lung cancer a year earlier. She filed a workers compensation claim for death benefits alleging that his death was “due to an occupational disease resulting from his exposure to asbestos and other airborne contaminants,” according to documents in In the Matter of the Claim of Catherine Johnson v. Consolidated Edison Co. of NY, Workers' Compensation Board, filed in the Appellate Division of the Supreme Court of New York, Third Department, in Albany.

After Consolidated Edison Co. of New York denied the claim, the state Workers’ Compensation Board agreed with the employer, arguing that “there was no prima facie medical evidence to support a finding of causally related death,” documents state.

On further appeal, a state workers compensation law judge found that the medical report prepared by the first medical examiner on behalf of Ms. Johnson “was not filed with the Board in accordance with applicable regulations” and that the board, therefore, struck the report from the record. The judge in his decision afforded Ms. Johnson the opportunity to produce additional medical documentation. After she did so, the judge found that she had produced “prima facie medical evidence that decedent's death was causally related to his occupational exposure to asbestos based on this report.” The judge then prompted Consolidated Edison to retain its own independent medical examiner to provide a records review report.

The medical examiner retained by the company said the “decedent's death was not causally related to work.” In conducting court-ordered depositions of their respective independent medical examiners, the first examining physician attempted to refute that opinion by referring to an article published in a professional journal that was not identified in his latter report nor “made a part of the Board's case file,” causing the employer to object to its inclusion as evidence.

At a later hearing Ms. Johnson’s lawyer requested that the judge permit the first medical examiner to submit an addendum of the medical journal article aiming to prove the cancer was related to exposure to toxins at work. The employer maintained that this was a violation of state law “because the article was not part of the Board's case file,” documents state.

The judge later granted the addendum, which the employer appealed on the basis of required procedures.

The board later ruled that the medical examiner’s report “did not comply with the applicable regulations and that, consequently, there was no basis for the addendum,” and precluded both the report and the additional information, rescinding the judge’s prior finding that there was medical evidence supporting Ms. Johnson’s claim and closing the case.

In its ruling, the appeals court found that the board was within its right to preclude the second report, as it was not in the record in accordance with state law that requires that such information be included in the official board file “at the time it is provided to the independent medical examiner or his or her office so that it is available to all parties.”

Ms. Johnson argued that the later report “satisfied the regulatory requirements” yet the appeals court reached the conclusion that it “was not new” nor did it provide additional evidence. At issue was also what “appears to be a photocopy” of the medical examiner’s signature in the later report, which is in violation of state law, according to the ruling.

“Given that this report failed to comply with the regulatory requirements, it was properly precluded by the Board,” the ruling states. “The only admissible medical evidence in the record is the report of the employer's examiner, who found no causal relationship. Therefore, we find no reason to disturb the Board's decision.”