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Claimant Did Not Link Illness Caused by Ingestion of a Ubiquitous Mold to Workplace

The Third Department reversed the Workers' Compensation Board's determination that claimant had contracted an occupational disease by ingesting mold on the job at a garbage recycling and energy production facility.  Although there was mold at the plant, that same mold is ubiquitous:

Initially, Workers' Compensation Law § 2 (15) defines an occupational disease as “a disease resulting from the nature of employment and contracted therein” … . In order to demonstrate that a condition is compensable as an occupational disease, a claimant must “establish a recognizable link between his [or her] condition and a distinctive feature of his [or her] occupation through the submission of competent medical evidence” … .

Here, claimant maintained that he was exposed to the aspergillus fungus while working in the cooling tower, where he observed green plant life growing, and also in the boiler house under the ram feeder table, where there was decomposing garbage… . * * *

Carl Friedman, a pulmonary specialist who conducted an independent medical examination based upon a review of claimant's medical records, opined that claimant's respiratory condition was not causally related to his employment. Because the aspergillus fungus is ubiquitous and is found in soil everywhere, Friedman testified, claimant could have been exposed in an industrial setting or at home in his own backyard. Friedman further indicated that it could not be determined exactly when claimant was exposed or, given claimant's clinical history, the date of onset of the disease.

Based upon the foregoing, claimant has not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job as a maintenance mechanic and/or planner … . Matter of Connolly v Covanta Energy Corp, 2014 NY Slip Op 09076, 3rd Dept 12-31-14


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