Opinion
2011-12-8
In the Matter of the Claim of Bobby C. MAYE, Appellant, v. ALTON MANUFACTURING, INC., Respondent,andSpecial Fund for Reopened Cases, Respondent.Workers' Compensation Board, Respondent.
Bobby C. Maye, Rochester, appellant pro se. Steven M. Licht, Special Funds Conservation Committee (Jill B. Singer of counsel), for Special Fund for Reopened Cases, respondent.
Bobby C. Maye, Rochester, appellant pro se. Steven M. Licht, Special Funds Conservation Committee (Jill B. Singer of counsel), for Special Fund for Reopened Cases, respondent.
Before: ROSE, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.
ROSE, J.P.
Appeal from an amended decision of the Workers' Compensation Board, filed February 16, 2010, which ruled that claimant had no further causally related disability.
After claimant retired in March 1994, his work-related occupational hearing loss was established with a 59.5% binaural hearing schedule loss of use and the case was closed in 1997. In 2005, the claim was transferred to the Special Fund for Reopened Cases. In 2007, claimant submitted a request for further action, asserting that he now suffers from a causally related 71.56% binaural hearing loss. Following hearings, a Workers' Compensation Law Judge found, among other things, that claimant had established that his increased hearing loss was causally related to his employment. Upon review, the Workers' Compensation Board reversed in an amended decision, and claimant now appeals.
Claimant bears the burden of establishing that a causal relationship exists between his injury and his employment ( see Matter of Norton v. North Syracuse Cent. School Dist., 59 A.D.3d 890, 890, 874 N.Y.S.2d 302 [2009] ). Here, claimant relied on the medical report of his treating otolaryngologist, who stated unequivocally that “[claimant's] hearing loss is 100% causally related to his job.” This opinion, based on a 2007 examination of claimant, specifically noted the lack of any causes 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.