IN the Matter of Cammarata v. Caldwell & Cook, Inc. (2005)

Our plain-English summary of IN the Matter of Cammarata v. Caldwell & Cook, Inc. (New York Supreme Court, Appellate Division, June 23, 2005).

Sheila Cammarata filed for workers' compensation death benefits after her husband, Jack Cammarata, died of mesothelioma in 1996. He had worked as a drywall finisher for Azor Drywall Company from 1964 to 1967. The Board found his death was caused by workplace asbestos exposure and that Merchants Mutual Insurance Company, Azor's carrier, had to pay. Azor, which went out of business in the 1970s, and Merchants appealed. The Appellate Division, Third Department, affirmed. It said the record showed he routinely handled asbestos-containing drywall products and breathed dust from preparing finishing compounds. Although pathology reports found no asbestos fibers in his lungs, the Board could rely on the claimant's expert because no contrary evidence was offered. Liability falls on the last employer in the employment that caused the disease, so the question was which carrier covered Azor then. Employer cards showed Merchants as carrier in 1965, and with no evidence of cancellation or non-renewal, coverage was deemed to continue through 1967.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 3rd Dept.
• Decided: June 23, 2005
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. The Appellate Division affirmed the Workers' Compensation Board's decision that Jack Cammarata's death from mesothelioma was work-related and that Merchants Mutual Insurance Company, Azor Drywall's carrier, was liable, so the claimant won and Azor and Merchants lost.

What the court held. In an occupational disease claim, liability falls on the last employer in the employment that caused the disease, so the carrier at risk during that employment pays. A carrier's coverage is deemed to continue absent evidence of cancellation or non-renewal. The Board may rely on the claimant's expert on causation when there is no contrary evidence.

Issues decided: Causation, Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation, Insurance Coverage.

The people and their exposure

• Jack Cammarata: mesothelioma; died

The defendants

• Azor Drywall Company (employer)
• Merchants Mutual Insurance Company (insurer)
• Caldwell & Cook, Inc. (employer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Matter of Conway v. Cbi Services, Inc. (New York Supreme Court, Appellate Division, 3rd Dept., 2003). The Appellate Division affirmed the Workers' Compensation Board's decision holding CBI Services and its carrier National Union liable on the widow's death benefits claim, rejecting their due process, evidence and settlement-consent arguments.
• Matter of O'malley v. Consolidated Edison Company of New York (New York Supreme Court, Appellate Division, 3rd Dept., 2003). The Appellate Division reversed the Workers' Compensation Board's decision disallowing the widow's death benefits claim against Consolidated Edison and remitted the matter to the Board for further proceedings.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN THE MATTER OF THE CLAIM OF SHEILA CAMMARATA, Respondent,

v.

CALDWELL & COOK, INC., ET AL., Respondents, and AZOR DRYWALL COMPANY ET AL.,

Appellants.

WORKERS' COMPENSATION BOARD, Respondent.

Decided and Entered: June 23, 2005.

Appellate Division of the Supreme Court of New York, Third Department.

Stockton, Barker & Mead L.L.P., Albany (Robert S. Stockton of counsel), for appellants.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria L.L.P., Buffalo (John A. Collins of counsel), for Sheila Cammarata, respondent.

Eliot Spitzer, Attorney General, Albany (Estelle Kraushar of counsel), for Workers' Compensation Board, respondent. Before: Spain, J.P., Carpinello, Rose, Lahtinen and Kane, JJ.

MEMORANDUM AND ORDER

CARPINELLO, J.

Jack Cammarata (hereinafter decedent) worked as a drywall finisher for Azor Drywall Company from 1964 to 1967. Azor ceased operations in the 1970s and was dissolved in 1982. After decedent's 1996 death from mesothelioma, his wife filed an application for workers' compensation benefits claiming same was caused by his workplace exposure to asbestos. Following hearings, the Workers' Compensation Law Judge found, among other things, that Azor's workers' compensation carrier, Merchants Mutual Insurance Company, was the liable carrier and that decedent had died of an occupational disease causally related to his employment. The Workers' Compensation Board agreed with these findings. Azor and Merchants now appeal.

Initially, we find no error in the Board's determination that decedent's death was causally related to his occupational exposure to asbestos. The record reflects that decedent routinely handled drywall products which contained asbestos and that he was exposed to harmful dust generated by the preparation of finishing compounds. Although pathology reports failed to reveal asbestos fibers in decedent's lungs, the Board, in the absence of any contrary evidence, was entitled to rely upon the medical opinion of claimant's expert that decedent's mesothelioma was caused by his workplace exposure to asbestos (see Matter of O'Malley v. Consolidated Edison Co. of N.Y., 301 AD2d 814, 815 [2003]).

Moreover, we reject the contention of both Azor and Merchants that they are not liable for payment because decedent's disablement occurred when Azor was no longer in business. Where a claim arises from an occupational disease such as mesothelioma, liability for the payment of an award falls to "the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted" (Workers' Compensation Law § 44; see Matter of Conway v. CBI Servs., 1 AD3d 739, 742 [2003]). Since decedent's mesothelioma arose from his employment as a drywall finisher with Azor, the issue distills to which workers' compensation carrier was at risk during that time period. Substantial evidence supports the Board's determination that Merchants is the liable carrier. The Board's investigation revealed employer cards showing that Merchants was Azor's carrier in 1965. In the absence of any evidence that Merchants canceled its coverage or refused to renew it, we find that the Board properly determined that Merchants' coverage was deemed to continue through 1967[1]. We have reviewed the remaining contentions of Azor and Merchants and find that they are either academic or are lacking in merit.

Spain, J.P., Rose, Lahtinen and Kane, JJ., concur.

ORDERED that the decision is affirmed, without costs.

[1] Azor and Merchants argue that the compulsory scheme in Workers' Compensation Law § 54 (5), as it relates to notice of nonrenewal, did not exist until 1971 and that it cannot be applied retroactively. We reject this argument for two reasons. First, it is not properly before us as it was not raised in their application for Board review or before the Workers' Compensation Law Judge (see Matter of Huang Sheng Ku v. Dana Alexander, Inc., 12 AD3d 988, 989 [2004]). More importantly, we do not find the Board determination here at issue to be predicated upon such a retroactive application of the statute.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites