You are here: / / HERE THE CLAIMANT WAS DEEMED DISABLED BY AN OCCUPATIONAL DISEASE (CANCER)...

HERE THE CLAIMANT WAS DEEMED DISABLED BY AN OCCUPATIONAL DISEASE (CANCER) CAUSED BY EXPOSURE TO ASBESTOS; THE EMPLOYER RESPONSIBLE FOR COMPENSATION IS THE LAST EMPLOYER WHERE THE NATURE OF THE WORK EXPOSED CLAIMANT TO ASBESTOS, NOT NECESSARILY THE EMPLOYER AT THE TIME THE CANCER WAS DIAGNOSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not use the correct criteria for determining the employer or insurer responsible to pay for claimant’s disability due to occupational disease, i.e., lung cancer caused by asbestos exposure:

… [I]n determining that the carrier was on the risk for the claim, the Board premised its finding solely on the date of disablement, or October 15, 2019, instead of evidence concerning the timing of claimant’s contraction of lung cancer and 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” (Workers’ Compensation Law § 44). This reasoning resulted in a misapplication of Workers’ Compensation Law § 44. “Simply put, disability while employed by a previous employer is not a prerequisite to a finding that a claimant contracted an occupational disease while employed by that employer” … . As such, we reverse and remit for a determination in the first instance of the proper employer and/or carrier on the risk utilizing the correct standard set forth in Workers’ Compensation Law § 44 … . Matter of Candela v Skanska USA Bldg. Inc., 2022 NY Slip Op 07113, Third Dept 12-15-22

Practice Point: Here the occupational disease which disabled claimant was cancer caused by exposure to asbestos. The employer responsible for compensation is the last employer where the nature of the work exposed claimant to asbestos, not necessarily the employer at the time the cancer was diagnosed.

 

You might also like
THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY SERVED IS APPEALABLE PURSUANT TO CPLR 5501 (C); THE ORDER BRINGS UP FOR APPEAL WHETHER THE TRAVERSE HEARING WAS NECESSARY; THE MAJORITY C0NCLUDED THE HEARING WAS NOT NECESSARY; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).
Herniated Disc not “Serious Injury”—Insufficient Proof of Physical Limitations.
Replevin and Order of Seizure (Asserting a Superior Right to Property) Explained
RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6);QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY.
FATHER’S VISITATION RIGHTS SHOULD NOT HAVE BEEN INDEFINITELY SUSPENDED WITHOUT A HEARING, UNTESTED EVIDENCE PRESENTED AT CONFERENCES NOT SUFFICIENT (SECOND DEPT).
EVEN IF PLAINTIFF’S STAIRWAY FALL RESULTED FROM A MISSTEP, EVIDENCE THAT PLAINTIFF WAS “LOOKING FOR A HANDRAIL” RAISED A QUESTION OF FACT WHETHER THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF THE FALL (SECOND DEPT).
DEFENDANTS FAILED TO DEMONSTRATE THEY DID NOT CREATE OR HAVE NOTICE OF THE ICE-SNOW CONDITION ON THE SIDEWALK IN THIS SLIP AND FALL CASE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Criteria for Derivative Neglect Finding Explained (Evidence Insufficient)

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

THE AMOUNT OF GENERAL MUNICIPAL LAW 207-A COMPENSATION TO WHICH RETIRED PERMANENTLY... DECEDENT’S WIFE’S CLAIM FOR DEATH BENEFITS BASED UPON DECEDENT’S...