You are here: / / SPECULATIVE MEDICAL OPINION DID NOT SUPPORT FINDING CLAIMANT’S PRIOR...

SPECULATIVE MEDICAL OPINION DID NOT SUPPORT FINDING CLAIMANT’S PRIOR EMPLOYER LIABLE FOR ASBESTOS-RELATED MESOTHELIOMA, DESPITE EVIDENCE OF EXPOSURE AT THE PRIOR EMPLOYER (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly found that claimant’s mesothelioma was due to asbestos exposure at Kodak, even though claimant was exposed to asbestos in his prior employment at International Paper. Kodak unsuccessfully sought apportionment of the liability with International Paper. Claimant’s employment at International Paper ended in 1967 and claimant worked at Kodak from 1967 to 1985. He was diagnosed in 2013:

… Workers’ Compensation Law § 44 states that, when a worker’s disability due to an occupational disease is established and benefits are awarded, “[t]he total compensation due shall be recoverable from 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. If, however, such disease . . . was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation . . . may appeal to the [B]oard for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due” … . “Importantly, liability under this provision is premised upon employment at the time of or following the contraction of the compensable occupational disease, not upon the disablement that ensues” …  The determination of when an employee contracted the disease, which refers to “when the disease process begins, as evidenced by symptoms, diagnosis or other medical evidence that shows [that the] disease process must have existed” … , is a question of fact to be determined by the Board, which will be upheld if supported by substantial evidence … . * * *

While the Board recognized that there may be a delay of up to 50 years between exposure to asbestos and a mesothelioma diagnosis, it correctly found that the medical opinions that decedent’s prior employment contributed to his condition were speculative and insufficient … . Matter of Gimber v Eastman Kodak Co., 2020 NY Slip Op 01875, Third Dept 3-16-20

 

You might also like
INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.
THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL BEFORE THE PERMANENCY HEARING WAS HELD IN MOTHER’S AND COUNSEL’S ABSENCE; NEGLECT FINDING REVERSED; TWO DISSENTERS ARGUED NO APPEAL LIES FROM A DEFAULT AND MOTHER’S ONLY REMEDY IS A MOTION TO VACATE (THIRD DEPT).
SUPREME COURT SHOULD HAVE ORDERED AND REVIEWED THE VICTIM’S PSYCHIATRIC FILE IN THIS RAPE PROSECUTION, NO OPPORTUNITY FOR APPELLATE REVIEW, NEW TRIAL ORDERED (THIRD DEPT).
THE SEARCH WAS NOT A VALID INVENTORY SEARCH; THE HANDGUN FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).
A CITY CODE ENFORCEMENT OFFICER ORDERED PETITIONER-TENANT TO VACATE HER APARTMENT AFTER FINDING SOME WINDOWS DID NOT OPEN; PENDING THE INSTANT APPEAL, THE CITY AMENDED THE CODE TO ALLOW A HEARING IN THIS CIRCUMSTANCE (RELIEF REQUESTED BY THE PETITIONER); THE CODE ENFORCEMENT OFFICER WAS AN AGENT OF THE STATE AND PETITIONER WAS ENTITLED TO COSTS, DISBURSEMENTS AND COUNSEL FEES AS THE PREVAILING PARTY IN THIS ACTION AGAINST THE STATE (THIRD DEPT). ​
THE WARRANTLESS SEARCHES OF CLOSED CONTAINERS WERE NOT JUSTIFIED BY THE ITEMS BEING IN DEFENDANT’S “GRABBABLE” AREA OR BY “EXIGENT CIRCUMSTANCES;” CONVICTION REVERSED (THIRD DEPT).
AFTER REVERSAL BY THE COURT OF APPEALS, THE EXPULSION OF PETITIONER STUDENT FOR SEXUAL MISCONDUCT IN VIOLATION OF THE COLLEGE’S STUDENT CODE CONFIRMED, COLLEGE APPEALS BOARD HAD THE POWER TO IMPOSE ANY AVAILABLE REMEDY INCLUDING EXPULSION (THIRD DEPT).
FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANT WAS WRONGFULLY TERMINATED AFTER TELLING HIS BOSS HE WAS GOING TO FILE... THE BOARD HAS THE AUTHORITY TO CHOOSE BETWEEN TWO CONFLICTING MEDICAL OPINIONS,...