Matter of O'malley v. Consolidated Edison Company of New York (2003)

Our plain-English summary of Matter of O'malley v. Consolidated Edison Company of New York (New York Supreme Court, Appellate Division, January 16, 2003).

Eileen O'Malley filed a workers' compensation claim for death benefits after her husband died in January 1991. He had worked about 25 years as a mechanic for Consolidated Edison. She said he died from mesothelioma caused by asbestos exposure at work. The employer disputed the claim. At the hearing, her medical expert, Ira Gould, was the only doctor to give an opinion on whether the work caused the cancer. A Workers' Compensation Law Judge found his testimony not credible and disallowed the claim, and the Workers' Compensation Board affirmed. The Appellate Division, Third Department, reversed. It noted that nobody disputed the roughly 25 years of asbestos exposure at work. Gould relied on that exposure and on features in the medical records, including a tissue reaction in the biopsy and a large pleural effusion. The court found his opinion had a rational basis. None of the treating doctors had addressed the cause of the cancer, so his opinion was uncontroverted, and the Board could not reject it without contrary medical opinion. The case went back to the Board.

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: January 16, 2003
• Citation: 301 A.D.2d 814
• Stage: Appeal from workers' compensation or benefits
• State: New York

Outcome. 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.

What the court held. A medical opinion on causation need only signify a probability and have a rational basis. If it is uncontroverted, the Workers' Compensation Board may not reject it without contrary medical expert opinion evidence.

Issues decided: Causation, Employer and Contractor Liability, and Workers' Compensation, Expert Testimony.

The people and their exposure

• decedent (husband of Eileen O'Malley): mesothelioma; died

The defendants

• Consolidated Edison Company of New York (employer)

Later decisions citing this one

One later decision in our library cites this one:

• IN the Matter of Cammarata v. Caldwell & Cook, Inc. (New York Supreme Court, Appellate Division, 3rd Dept., 2005). 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.

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 O'MALLEY v. Consolidated Edison Company of New York, 301 AD 2d 814 - NY: Appellate Div., 3rd Dept. 2003 - Goo… 301 A.D.2d 814 (2003)

753 N.Y.S.2d 587

In the Matter of the Claim of EILEEN O'MALLEY, Appellant,

v.

CONSOLIDATED EDISON COMPANY OF NEW YORK, Respondent.

WORKERS' COMPENSATION BOARD, Respondent.

Decided January 16, 2003.

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

Mercure, J.P., Peters, Mugglin and Kane, JJ., concur.

Lahtinen, J.

Decedent worked for the employer as a mechanic for approximately 25 years. In 1990, he was diagnosed with metastatic lung and bone cancer and died on January 18, 1991. In May 1992, claimant, decedent's widow, filed a claim for workers' compensation death benefits on the basis that decedent died from mesothelioma, an occupational lung disease caused by exposure to asbestos. The employer controverted the claim and a hearing was held before a Workers' Compensation Law Judge (hereinafter WCLJ) in November 1998 during which Ira Gould, claimant's medical expert, was the only physician to offer an opinion as to the causal relationship between decedent's employment and the cancer that caused his death. Following the hearing, the WCLJ found Gould's testimony concerning causal relationship neither creditable nor credible and disallowed the claim. The Workers' Compensation Board affirmed the WCLJ's decision, resulting in this appeal. Claimant asserts that the Board's decision is not supported [*815] by substantial evidence because it disregarded Gould's opinion on the issue of causation and, in effect, substituted an opinion of its own. On this record, we find merit in this argument. It is well settled that while "[t]he Workers' Compensation Law * * * does not require that medical opinions be expressed with absolute or reasonable medical certainty[,] * * * [it must] be reasonably apparent that the expert meant to signify a probability as to the cause and that his opinion be supported by a rational basis" (Matter of Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539, 539). Based upon our review of the record, we find that Gould's opinion has a rational basis.

Initially, we note that there is no dispute that decedent was exposed to asbestos at his place of employment for a period of approximately 25 years before his death. Gould based his medical opinion that a causal relation existed between decedent's employment and his death upon this extended exposure to asbestos and probative evidence gleaned from the medical records in the Board's file. Specifically, Gould identified a desmoplastic tissue reaction seen in decedent's biopsy and a large associated pleural effusion as definite features of malignant mesothelioma. The Board based its rejection of Gould's opinion as to causation on the fact that decedent's medical records contained no opinion from any of decedent's doctors that decedent's exposure to asbestos was causally related to his death. Significantly, however, the medical records do not relate decedent's metastatic lung and bone cancer to any specific cause. None of the doctors whose reports are contained in the Board's file was asked for or volunteered an opinion as to the cause of decedent's cancer. Accordingly, Gould's opinion as to causal relation, which we find to be rationally supported by facts gleaned from the medical records in the Board's file (see Matter of Matusko v Kennedy Valve Mfg. Co., 296 AD2d 726, 728, lv denied 99 NY2d 504; Matter of Ayala v DRE Maintenance Corp., 238 AD2d 674, 675, affd 90 NY2d 914; Matter of Van Patten v Quandt's Wholesale Distribs., supra), is uncontroverted and the Board may not reject it in the absence of some contrary medical expert opinion evidence regarding the cause of death (see Matter of Knouse v Millshoe, 260 AD2d 948, 950; Matter of Doersam v Oswego County Dept. of Social Servs., 171 AD2d 934, 936, affd 80 NY2d 775).

Ordered that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.

MATTER OF O'MALLEY v. Consolidated Edison Company of New York, 301 AD 2d 814 - NY: Appellate Div., 3rd Dept. 2003 - Goo…

Sources

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