Bonet v. N.Y.C. Transit Auth.

2022 NY Slip Op 03427

In the Matter of the Claim of David Bonet, Appellant, v. New York City Transit Authority, Respondent.

Workers' Compensation Board, Respondent.

No. 533489

Supreme Court of New York, Third Department

May 26, 2022

Calendar Date: April 21, 2022

Schotter, Millican, Sinaniyeva & Masilela, LLP, New York City (Geoffrey Schotter of counsel), for appellant.

Foley Smit, O'Boyle & Weisman, South Hauppauge (Theresa E Wolinski of counsel), for New York City Transit Authority, respondent.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.

Lynch J.

Appeal from a decision of the Workers' Compensation Board, filed January 8, 2021, which ruled that claimant did not sustain a causally-related occupational disease and denied his claim for workers' compensation benefits.

Prior to taking his regular service retirement in November 2019, claimant worked for the employer for 29 years in various capacities, including as a track worker/specialist operator. In that dual role, claimant was responsible for track repairs, which included transporting tools to and from the work site, and operating heavy equipment. Although claimant apparently began experiencing pain in his neck and shoulders during the last three or four years of his employment, he did not incur any lost time from work or seek medical treatment prior to retiring. Shortly after retiring, however, claimant filed a claim for workers' compensation benefits alleging repetitive stress injuries to his neck and shoulders. The employer controverted the claim contending, among other things, that claimant failed to make out a claim for an occupational disease. Following a hearing and the deposition of claimant's treating physician, a Workers' Compensation Law Judge found that claimant did not tender sufficient evidence to establish a causal connection between his work activities and the claimed occupational disease. Upon administrative review, the Workers' Compensation Board agreed and denied the claim. This appeal ensued.

We affirm. An occupational disease "does not derive from [either] a specific condition peculiar to an employee's place of work, [or] from an environmental condition specific to the place of work" but, rather, results from the nature of the employment itself (Matter of Patalan v PAL Envtl., 202 A.D.3d 1252, 1252 [2022] [internal quotation marks and citations omitted]; see Workers' Compensation Law § 2 [15]; Matter of Molina v Delta Airlines Inc., 201 A.D.3d 1193, 1194 [2022]). "To establish an occupational disease, the claimant must demonstrate a recognizable link between his or her condition and a distinctive feature of his or her employment" (Matter of Patalan v PAL Envtl., 202 A.D.3d at 1253 [internal quotation marks and citations omitted]; accord Matter of Molina v Delta Airlines Inc., 201 A.D.3d at 1194; see Matter of Gandurski v Abatech Indus., Inc., 194 A.D.3d 1329, 1329 [2021]). Where, as here, a claimant relies upon medical proof "to demonstrate the existence of a causal relationship, [such proof] 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 Molina v Delta Airlines Inc., 201 A.D.3d at 1194 [internal quotation marks and citations omitted]; accord Matter of Granville v Town of Hamburg, 136 A.D.3d 1254, 1255 [2016]; Matter of Lichten v New York City Tr. Auth., 132 A.D.3d 1219, 1219 [2015]). ^[1] Notably, "the Board's decision as to whether to classify a certain medical condition as an occupational disease is a factual determination that will not be disturbed if supported by substantial evidence" (Matter of Barker v New York City Police Dept., 176 A.D.3d 1271, 1272 [2019] [internal quotation marks and citation omitted], lv denied 35 N.Y.3d 902 [2020]; see Matter of Powers v State Material Mason Supply, 202 A.D.3d 1265, 1266 [2022]; Matter of Gandurski v Abatech Indus., Inc., 194 A.D.3d at 1330).

Although claimant testified at length regarding the various tasks he performed during the course of his employment, including the specific tools he utilized and the repetitive motions associated therewith, his treating physician's knowledge of claimant's work history and job requirements was far less detailed. Indeed, neither the reports filed by claimant's treating physician nor his deposition testimony "reflect[ed] that he had adequate knowledge of any of claimant's specific job duties, except in the most generalized sense, or the amount of time spent on those duties" (Matter of Patalan v PAL Envtl., 202 A.D.3d at 1253). The physician's initial reports indicated only that claimant "injured himself due to repetitive motions" and generically identified the "critical demands" of claimant's employment as "bending, pushing, pulling, lifting, carrying, reaching above shoulder level, sitting, standing and walking." Although claimant apparently completed an intake form detailing the requirements of his job during his initial office visit in December 2019, that form is not included in the record, and a report prepared by the physician in late January 2020...