Claim of Lincoln v. Consolidated Edison Co.

7 Citing cases

  1. Murphy v. N.Y. State Courts

    201 A.D.3d 1072 (N.Y. App. Div. 2022)   Cited 7 times

    ] [explaining that death benefits are permitted "when a work-related injury or disease ‘causes death,’ which the Appellate Division has interpreted to mean ‘contributes to death’ " (internal quotation marks and citation omitted)]). "In reviewing a Board decision concerning the medical question of causality, we will look to the record to determine whether, read as a totality, it contains substantial and adequate opinion evidence to support the Board's finding" ( Matter ofRossi v. Albert Pearlman Inc., 188 A.D.3d 1362, 1363, 134 N.Y.S.3d 579 [2020] [internal quotation marks and citations omitted]; seeMatter of Gallo v. Village of Bronxville Police Dept., 120 A.D.3d 849, 850, 991 N.Y.S.2d 174 [2014] ). "Although the Board's authority in resolving medical questions includes the power to selectively accept or reject portions of a medical expert's opinion, it may not totally reject uncontroverted medical testimony on the issue of causation and thereby fashion a medical opinion of its own" ( Matter ofLincoln v. Consolidated Edison Co. of N.Y., Inc., 46 A.D.3d 1176, 1177, 848 N.Y.S.2d 418 [2007] [citations omitted]; accord Matter ofLovegrove v. Regional Food Bank of Northeastern NY, 148 A.D.3d 1434, 1435, 50 N.Y.S.3d 610 [2017] ). The record reflects that, following the attack on the World Trade Center, decedent spent numerous days and nights at the World Trade Center site without using a protective respiratory device while working as a member of a "bucket brigade" searching for, among other items, lost persons and body parts.

  2. Lovegrove v. Reg'l Food Bank of Ne. NY

    148 A.D.3d 1434 (N.Y. App. Div. 2017)   Cited 4 times

    The Workers' Compensation Board affirmed and this appeal ensued."Although the Board's authority in resolving medical questions includes the power to selectively accept or reject portions of a medical expert's opinion, it may not totally reject uncontroverted medical testimony on the issue of causation and thereby fashion a medical opinion of its own" (Matter of Lincoln v. Consolidated Edison Co. of N.Y., Inc., 46 A.D.3d 1176, 1177, 848 N.Y.S.2d 418 [2007] [citations omitted]; see Matter of Norton v. North Syracuse Cent. School Dist., 59 A.D.3d 890, 891, 874 N.Y.S.2d 302 [2009] ). Here, the orthopedic surgeon who treated claimant unequivocally testified that, to a reasonable degree of medical certainty, the injury to the right shoulder blade area was causally related to the accident.

  3. Murphy v. N.Y. State Courts

    2022 N.Y. Slip Op. 87 (N.Y. Sup. Ct. 2022)

    "In reviewing a Board decision concerning the medical question of causality, we will look to the record to determine whether, read as a totality, it contains substantial and adequate opinion evidence to support the Board's finding" (Matter of Rossi v Albert Pearlman Inc., 188 A.D.3d 1362, 1363 [2020] [internal quotation marks and citations omitted]; see Matter of Gallo v Village of Bronxville Police Dept., 120 A.D.3d 849, 850 [2014]). "Although the Board's authority in resolving medical questions includes the power to selectively accept or reject portions of a medical expert's opinion, it may not totally reject uncontroverted medical testimony on the issue of causation and thereby fashion a medical opinion of its own" (Matter of Lincoln v Consolidated Edison Co. of N.Y., Inc., 46 A.D.3d 1176, 1177 [2007] [citations omitted]; accord Matter of Lovegrove v Regional Food Bank of Northeastern NY, 148 A.D.3d 1434, 1435 [2017]). The record reflects that, following the attack on the World Trade Center, decedent spent numerous days and nights at the World Trade Center site without using a protective respiratory device while working as a member of a "bucket brigade" searching for, among other items, lost persons and body parts.

  4. Maye v. Alton Mfg. Inc.

    90 A.D.3d 1177 (N.Y. App. Div. 2011)   Cited 9 times

    of his hearing loss that were unrelated to his employment. The medical opinion of claimant's treating physician was neither speculative nor a general expression of possibility ( see e.g. Matter of Benjamin v. Sprint/Nextel, 67 A.D.3d 1277, 1278, 889 N.Y.S.2d 308 [2009] ); Matter of Dechick v. Auburn Correctional Facility, 38 A.D.3d 1094, 1095, 833 N.Y.S.2d 261 [2007], and it “signif[ies] a probability as to the underlying cause of the claimant's injury which is supported by a rational basis” ( Matter of Mayette v. Village of Massena Fire Dept., 49 A.D.3d 920, 922, 852 N.Y.S.2d 488 [2008] [internal quotation marks and citation omitted]; see Matter of Benjamin v. Sprint/Nextel, 67 A.D.3d at 1278, 889 N.Y.S.2d 308). Inasmuch as there was no conflicting medical evidence presented here, the Board's rejection of the treating physician's uncontroverted medical opinion on causation was improper ( see Matter of Shkreli v. Initial Contract Servs., 55 A.D.3d 1067, 1070, 868 N.Y.S.2d 158 [2008]; Matter of Lincoln v. Consolidated Edison Co. of N.Y., Inc., 46 A.D.3d 1176, 1177–1178, 848 N.Y.S.2d 418 [2007]; Matter of Sullivan v. Sysco Corp., 199 A.D.2d 849, 851, 606 N.Y.S.2d 77 [1993] ). ORDERED that the amended decision is reversed, with costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.

  5. IN MATTER OF MATTER OF MAYE v. ALTON MFG.

    2011 N.Y. Slip Op. 8858 (N.Y. App. Div. 2011)

    The medical opinion of claimant's treating physician was neither speculative nor a general expression of possibility (see e.g. Matter of Benjaminv Sprint/Nextel , 67 AD3d 1277, 1278); Matter ofDechick v Auburn Correctional Facility , 38 AD3d 1094, 1095), and it "signif[ies] a probability as to the underlying cause of the claimant's injury which is supported by a rational basis" (Matter of Mayette v Village of Massena FireDept. , 49 AD3d 920, 922 [internal quotation marks and citation omitted]; see Matter of Benjamin v Sprint/Nextel, 67 AD3d at 1278). Inasmuch as there was no conflicting medical evidence presented here, the Board's rejection of the treating physician's uncontroverted medical opinion on causation was improper (see Matterof Shkreli v Initial Contract Servs. , 55 AD3d 1067, 1070; Matter of Lincoln v ConsolidatedEdison Co. of N.Y., Inc. , 46 AD3d 1176, 1177-1178; Matter of Sullivan v Sysco Corp., 199 AD2d 849, 851). Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur.

  6. Pavone v. Auto Parts

    79 A.D.3d 1385 (N.Y. App. Div. 2010)

    These discrepancies were explored at the hearing and, according to claimant's treating physician, they did not affect his medical opinion that claimant suffered a work-related injury. Notably, the physician who performed the independent medical examination also concluded that claimant's back injury was causally related to his employment. Thus, considering "the unanimous opinion of the experts on the issue of causation," which was consistent with the evidence in the record, we find the Board's determination to be supported by substantial evidence ( Matter of Doersam v Oswego County Dept. of Social Servs., 171 AD2d 934, 936, affd 80 NY2d 775; see Matter of Lincoln v Consolidated Edison Co. of N.Y., Inc., 46 AD3d 1176, 1177). Finally, we note that the Board returned the case to the hearing calendar and specifically provided the carrier with an opportunity to have claimant reexamined with the benefit of all of his medical records.

  7. Prange v. Anchor Packing Co.

    2011 N.Y. Slip Op. 32038 (N.Y. Sup. Ct. 2011)

    However, these decisions are inconsistent with prevailing Appellate authority and provide no facts to show that they are consistent with this case. See Reid v Georgia Pacific Corp., 212 AD2d 462, 462 [1st Dept 1995] [plaintiff need only demonstrate that he was exposed to asbestos fibers released from the defendant's product; Cawein v Flintkote Co., 203 AD2d 105, 106 [1st Dept 1994] [it is sufficient for plaintiff to show facts and conditions from which defendant's liability may be reasonably inferred]; Lincoln v Consolidated Edison Co., et al., 46 AD3d 1176 [3d Dept 2007] [Workers' Compensation Board erred in concluding that there could be no causal connection between plaintiff's exposure to asbestos and his lung cancer where physician opined that plaintiff's exposure was a significant cause of such cancer]).