New York: Board’s Failure to Apportion Liability for Asbestos-Related Condition Affirmed

The New York Workers’ Compensation Board appropriately refused to apportion liability for claimant’s asbestos-related disease despite some evidence that the claimant had exposure to asbestos at multiple employers over a long period of time. The appellate court noted that an X-ray taken in May 1999 revealed the presence of pleural plaque consistent with exposure to asbestos. At that time, claimant was employed by ABB Combustion Engineering. An X-ray taken during 1992 was normal, with no indication of pleural plaque. A medical expert opined that the latency period between the exposure to asbestos and the manifestation of a related disease would suggest that the clear majority of the causal factors for the pleural plaques were significantly before 1999. While the expert indicated that apportionment was appropriate, the court noted that the expert had spoken only in terms of exposure; the expert admitted that determining claimant’s exposure to asbestos at each employer was impossible. The appellate court concluded that since there was no objective proof in the record that claimant contracted pleural plaque while working for another employer, the Board’s decision not to apportion the claim was supported by substantial evidence and would not be disturbed.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Manocchio v ABB Combustion Eng’g, 2017 N.Y. App. Div. LEXIS 3509 (3rd Dept., May 4, 2017)

See generally Larson’s Workers’ Compensation Law, §§ 153.02, 153.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law