| Matter of Mayette v Village of Massena Fire Dept. |
| 2008 NY Slip Op 01878 [49 AD3d 920] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Michael D. Mayette, Appellant, vVillage of Massena Fire Department et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Cappello, Linden & Ladouceur, Potsdam (Michelle H. Ladouceur of counsel), for Village ofMassena Fire Department, respondent. Andrew W. Silver, County Attorney, Canton (Andrew S. Moses of counsel), for St.Lawrence County Self-Insurance Plan, respondent.
Peters, J. Appeals from two amended decisions of the Workers' Compensation Board, filedSeptember 29, 2005 and April 18, 2006, which, among other things, ruled that claimant did notsustain a work-related injury.
Claimant, a firefighter for the Village of Massena Fire Department (hereinafter the employer)in St. Lawrence County, responded to a chemical spill in the seaway lock in July 1989. Duringclean-up efforts, he was allegedly exposed to large amounts of xylene fumes and, in addition,suffered significant sunburns. Two years later, he began developing skin lesions and wasdiagnosed with basal cell carcinoma. Claimant also experienced depression, anxiety and otherrelated physical conditions requiring psychiatric medications. He ceased working in November2002 and thereafter filed a claim for workers' compensation benefits.[*2]
Following a hearing, a Workers' Compensation LawJudge (hereinafter WCLJ) found prima facie evidence to support the claim based upon the reportof Michael Lax, an occupational disease specialist who was also claimant's treating physician,and directed claimant to undergo an independent medical examination (hereinafter IME).Although an IME was subsequently performed, such report was precluded by the WCLJ asuntimely, and a panel of the Workers' Compensation Board affirmed. Thereafter, Lax provideddeposition testimony on the issues of causally related disability and consequential depression andanxiety. At subsequent hearings, claimant testified and the workers' compensation carrierpresented the testimony of Allan Rossner, an environmental health expert.
In a July 2004 decision, the WCLJ found no evidence to support a finding that claimant'sexposure to xylene caused his disability. Claimant appealed and, in a September 2005 decision,the Board affirmed to the extent that it found that claimant's injuries were not workrelated.[FN*]Specifically, the Board concluded that claimant failed to present sufficient credible medicalevidence causally relating his exposures to xylene and sunlight on the day of the incident to hiscancerous skin condition, finding Lax's testimony in this regard to be speculative, without arational basis and otherwise incredible. In so ruling, the Board credited Rossner's testimony thatthere were no medical studies or data linking the combination of xylene and sun exposure withcancer. Claimant appeals and we affirm.
We find the Board's determination that claimant's combined exposure to xylene and sunlightin July 1989 was not causally related to his disability to be supported by substantial evidence. Itwas claimant's burden to establish a causal relationship between his employment and hisdisability by competent medical evidence (see Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999, 1000[2004]; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876, 877 [2002]).To this end, a medical opinion on the issue of causation must signify "a probability as to theunderlying cause" of the claimant's injury which is supported by a rational basis (Matter of Paradise v Goulds Pump, 13AD3d 764, 765 [2004]; see Matter of Van Patten v Quandt's Wholesale Distribs.,198 AD2d 539, 539 [1993]). "[M]ere surmise, or general expressions of possibility, are notenough to support a finding of causal relationship" (Matter of Ayala v DRE MaintenanceCorp., 238 AD2d 674, 675 [1997], affd 90 NY2d 914 [1997]; see Matter of Zehr v JeffersonRehabilitation Ctr., 17 AD3d 811, 813 [2005]).
Attempting to support claimant's contention that his cancerous skin condition was workrelated, Lax testified that, although xylene was not a carcinogen, claimant's exposure to thechemical while under direct sunlight was a significant factor but not the sole cause of claimant'sinjury. While Lax opined that the July 1989 incident was significant because claimant's 16-hourexposure to sun on that day was qualitatively different from any previous sun exposure, Laxacknowledged that he never questioned claimant about prior significant sunburns despiteclaimant's history of recreational diving, employment as a United States Marine and several yearsof working on boats in the ocean. Furthermore, when asked the basis for his conclusion thatclaimant's skin condition was related to xylene and sun exposure, Lax could only state that this"seemed to . . . be a pretty reasonable explanation as a significant contributingcause" of claimant's injury. In our view, the Board acted within its discretion in rejecting Lax'stestimony [*3]as speculative (see Matter of Dechick v Auburn Correctional Facility, 38 AD3d1094, 1095 [2007]; Matter of Chinkel v Fair Harbor Fire Dept., 295 AD2d 829, 830[2002]). Moreover, although Lax provided the only expert medical opinion on the issue ofcausation, the Board is free to "reject an expert's opinion where, as here, the Board found that theexpert did not testify convincingly or credibly in support of a finding of [a] causally relateddisability" (Matter of Castro v Tishman Speyer Props., 303 AD2d 790, 791 [2003]; see Matter of Albert v Miracle Makers ofBedford Stuyvesant HFDC, Inc., 13 AD3d 925, 926 [2004]).
Claimant's remaining contentions, including his challenges to the denials of his variousrequests for full Board review, have been considered and found to be lacking in merit.
Cardona, P.J., Spain, Lahtinen and Kane, JJ., concur. Ordered that the amended decisions areaffirmed, without costs.
Footnote *: Although this decision wassubsequently amended by decision dated April 18, 2006, the Board's conclusion remainedunchanged.