| Matter of Duncan v John Wiley & Sons, Inc. |
| 2008 NY Slip Op 06918 [54 AD3d 1124] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Jennifer Duncan, Respondent. v JohnWiley & Sons, Inc., et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Stein, J. Appeal from a decision of the Workers' Compensation Board, filed June 5, 2007,which ruled, among other things, that claimant sustained a causally related injury and awardedworkers' compensation benefits.
Claimant, a computer programmer, began suffering from various symptoms, includingheadaches, nausea, insomnia and confusion, during the summer of 2000. These symptomscoincided with renovation work being done at her workplace. She stopped working on August31, 2000 and, other than for one day in September 2000, she never returned to work. In 2002,claimant applied for workers' compensation benefits, citing, among other conditions, multiplechemical sensitivity caused by prolonged exposure to noxious fumes related to carpet installationand painting at her workplace. A Workers' Compensation Law Judge determined that claimanthad sustained an accidental injury in the course of her employment and awarded her benefits. Onreview, the Workers' Compensation Board affirmed, prompting this appeal.[*2]
We affirm. While an accidental injury must arise from"unusual environmental conditions or events assignable to something extraordinary" (Matterof Rakowski v New York State Dept. of Labor, 243 AD2d 1020, 1020 [1997], lvdenied 91 NY2d 807 [1998]; accordMatter of Carlson-Fanelli v St. Luke's Mem. Hosp. Ctr., 12 AD3d 873, 874 [2004],lv dismissed 5 NY3d 746 [2005]), it "need not result suddenly or from the immediateapplication of some external force but may accrue gradually over a reasonably definite period oftime" (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d129, 136 [1994]; see Matter of Engler vUnited Parcel Serv., 16 AD3d 969, 970 [2005], lv denied 5 NY3d 705 [2005]).Furthermore, "where causally related injuries from a claimant's employment precipitate,aggravate or accelerate a preexisting infirmity or disease, the resulting disability is compensable"(Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d at138). Although the employer contends that claimant's failure to identify the specific chemicalpresent in the workplace that caused her symptoms is grounds for disallowance of the claim, sucha failure is not fatal to her claim, provided she can establish a causal relationship between hersymptoms and her employment (seeMatter of Barcomb v Delphi Automotive, 42 AD3d 809, 810-811 [2007]).
Here, Kamau Kokayi and Aboaba Afilaka, claimant's medical experts, diagnosed claimant assuffering from multiple chemical sensitivity, brought on by her exposure to noxious fumes fromvarious chemicals related to the renovations performed at her workplace from June 2000 toAugust 2000. The employer's expert testified that his examination of claimant revealed nophysical or neurological disorder and he believed her condition to be psychological. He alsotestified that he did not believe that multiple chemical sensitivity was a diagnosis that wasaccepted by the medical community and that he had never treated a patient alleging thiscondition. According proper deference to the Board's resolution of conflicting medical evidenceand evaluation of witness credibility, we find the Board's conclusion to be supported bysubstantial evidence and decline to disturb it (see Matter of Baer v Eden Park Nursing Home, 51 AD3d 1344,1344-1345 [2008]; Matter of Pearson vBestcare, 48 AD3d 862, 863 [2008], lv denied 10 NY3d 715 [2008]; Matter of Cullen v City of WhitePlains, 45 AD3d 1167, 1168 [2007]). The employer's remaining contentions, to theextent not addressed herein, have been considered and found to be lacking in merit.
Spain, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the decision is affirmed,without costs.