Matter of Claim OF Manocchio v. Abb Combustion Eng'g (2017)

Our plain-English summary of Matter of Claim OF Manocchio v. Abb Combustion Eng'g (New York Supreme Court, Appellate Division, May 4, 2017).

Robert Manocchio worked as a boilermaker for more than 30 years for various employers. A chest X-ray on May 8, 1999 showed pleural plaque consistent with asbestos exposure, and he filed a workers' compensation claim that September. A compensation judge set the date the disease was contracted as May 8, 1999, and held ABB Combustion Engineering, the most recent employer with asbestos exposure, liable. ABB's carrier asked to spread responsibility among his earlier employers. The judge refused, and the Workers' Compensation Board affirmed. On appeal, the Appellate Division, Third Department, also affirmed. A 1992 X-ray had been normal, and Manocchio had no diagnosis, treatment or known symptoms before 1999. The carrier's medical expert could not say when or where the plaques were contracted and admitted that measuring exposure at each employer was impossible. The court found no objective proof that Manocchio contracted the disease while working for another employer. It held that the Board's refusal to apportion, and its setting of the contraction and disability dates as the same day, were supported by substantial evidence.

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: May 4, 2017
• Citation: 150 A.D.3d 1343
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. The Appellate Division affirmed the Workers' Compensation Board's decision denying the carrier for ABB Combustion Engineering's request to apportion liability among claimant Manocchio's prior employers, so ABB and its carrier lost.

What the court held. Apportionment among prior employers depends on whether the claimant contracted the occupational disease while employed by each one. Without objective proof of contraction during earlier employment, the Board's refusal to apportion and its setting of the contraction date at the diagnosis date were supported by substantial evidence.

Issues decided: Fault, Apportionment and Settlement Credits, Employer and Contractor Liability, and Workers' Compensation.

The people and their exposure

• Robert Manocchio: pleural plaques and thickening

The defendants

• ABB Combustion Engineering (employer)
• Arrowpoint Capital, on behalf of Thomas O'Connor (insurer)

Later decisions citing this one

One later decision in our library cites this one:

• Matter of Gimber v. Eastman Kodak Co. (New York Supreme Court, Appellate Division, 3rd Dept., 2020). The Appellate Division affirmed the Workers' Compensation Board's decision denying Eastman Kodak and its carrier's request to apportion the death benefits claim with prior employer International Paper.

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.

MATTER OF CLAIM OF MANOCCHIO v. ABB Combustion Eng'g, 150 AD 3d 1343 - NY: Appellate Div., 3rd Dept. 2017 - Google Sc… 150 A.D.3d 1343 (2017)

2017 NY Slip Op 03577

54 N.Y.S.3d 198

In the Matter of the Claim of ROBERT MANOCCHIO, Claimant,

v.

ABB COMBUSTION ENGINEERING et al., Appellants, and

ARROWPOINT CAPITAL, on Behalf of THOMAS O'CONNOR, Respondent.

WORKERS' COMPENSATION BOARD, Respondent.

Decided May 4, 2017.

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

[*1344] Appeal from a decision of the Workers' Compensation Board, filed April 30, 2015, which denied a request by the workers' compensation carrier for apportionment among claimant's prior employers pursuant to Workers' Compensation Law § 44.

McCarthy, J.P., Garry, Egan Jr. and Mulvey, JJ., concur.

Rose, J.

Claimant worked as a boilermaker for over 30 years for various employers. On May 8, 1999, a chest X ray revealed the presence of pleural plaque consistent with the exposure to asbestos and, in September 1999, claimant filed a workers' compensation claim. A Workers' Compensation Law Judge ultimately established the claim for an occupational disease and found that the date of contraction of the disease was May 8, 1999. ABB Combustion Engineering, as the most recent employer involving asbestos exposure, was found liable for the claim. The workers' compensation carrier for ABB Combustion Engineering sought to apportion responsibility for the claim among claimant's prior employers (see Workers' Compensation Law § 44). The Workers' Compensation Law Judge denied the carrier's request and, upon review, the Workers' Compensation Board affirmed. ABB Combustion Engineering and the carrier (hereinafter collectively referred to as the carrier) now appeal.

We affirm. "In determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant `contracted an occupational disease while employed by that employer'" (Matter of Walton v Lin-Dot, 85 AD3d 1413, 1414 [2011], quoting Matter of Polifroni v Delhi Steel Corp., 46 AD3d 970, 971 [2007]; see Workers' Compensation Law § 44). The record reflects that the results of a 1992 chest X ray of claimant were normal with no indication of pleural plaque. Claimant testified that he was not diagnosed or treated for pleural plaque until after the May 1999 X ray, and there is no proof in the record that he experienced any symptoms related to the disease prior to the diagnosis. The carrier's medical expert, who reviewed claimant's medical records in 2012, could not determine a contraction date, opining that the existence of pleural plaque reflects "asbestos exposure as having been present at some point in the past" but "[i]t doesn't tell us when and it doesn't tell us where and it does not typically cause clinical illness." The expert opined that the latency period between the exposure to asbestos and the manifestation of a related disease "would suggest that, in fact, the vast majority of the causal factors for the pleural plaques were significantly before 1999." As a result, the expert determined that the claim should be apportioned between [*1345] employers going back as far as claimant's time in the military and his work as a brake mechanic prior to becoming a boilermaker. The expert spoke, however, in terms of exposure only and, even then, he admitted that determining claimant's exposure to asbestos at each employer "is impossible." In light of the lack of objective proof in the record that claimant contracted pleural plaque while working for another employer, the Board's decision not to apportion the claim is supported by substantial evidence and will not be disturbed (see Matter of Good v Town of Brutus, 111 AD3d 1016, 1017-1018 [2013]; Matter of Walton v Lin-Dot, 85 AD3d at 1414). Moreover, inasmuch as "[t]he determination of the date of the contraction of the disease and of the date of disablement involved questions of fact" for the Board to resolve (Matter of Lawton v Port of N.Y. Auth., 276 App Div 81, 87 [1949], lv denied 300 NY 761 [1950]), we conclude, under these circumstances, that the Board's decision to set the date of

MATTER OF CLAIM OF MANOCCHIO v. ABB Combustion Eng'g, 150 AD 3d 1343 - NY: Appellate Div., 3rd Dept. 2017 - Google Sc… contraction and the date of disability as the same day is supported by substantial evidence. The carrier's remaining claims have been considered and found to be without merit.

Ordered that the decision is affirmed, without costs.

Sources

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