| Matter of Ciafone v Consolidated Edison of N.Y. |
| 2008 NY Slip Op 07050 [54 AD3d 1135] |
| September 25, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Isabel A. Ciafone, Appellant, vConsolidated Edison of New York et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Lawrence Komsky, Cedarhurst, for Consolidated Edison of New York and another,respondents.
Carpinello, J. Appeal from a decision of the Workers' Compensation Board, filed February 2,2006, which ruled that the death of claimant's decedent was not causally related to hisemployment and denied her claim for workers' compensation death benefits.
Claimant's decedent was employed primarily as a gas line repairman for the employer from1964 to 1995, during which time he was exposed to asbestos and other chemicals. Shortly beforehis death in 1995, decedent was diagnosed with pancreatic cancer, precipitating the instant claimfor workers' compensation death benefits. After a series of hearings, a Workers' CompensationLaw Judge (hereinafter WCLJ) rendered a decision finding no causal relationship betweendecedent's death and his employment and the Workers' Compensation Board affirmed thatdecision. Claimant appeals and we affirm.
"Upon our review of a Board decision, we will not disturb such if it is supported bysubstantial evidence, despite the existence of evidence that may have supported a different result"(Matter of Guifarro v Zalman, Reiss &Assoc., 52 AD3d 1126, 1127 [2008] [citations omitted]; [*2]seeMatter of Baer v Eden Park Nursing Home, 51 AD3d 1344, 1345 [2008]). Here,claimant's medical expert, Stanley Mondrow, stated both in his report and during testimony thatthere is a definite relationship between exposure to asbestos and the development ofgastrointestinal malignancies and, therefore, he opined that decedent's cancer was at least in partrelated to his industrial exposure to asbestos. The employer's medical expert, Carl Friedman,refuted Mondrow's conclusion, explaining that pancreatic cancer is a different type of cancer thanother gastrointestinal cancers and, therefore, should not be grouped together with them whenconsidering the research. To the contrary, Friedman stated definitively in his report that there isno association between asbestos exposure and pancreatic cancer and similarly testified that areview of the literature did not indicate that asbestos causes pancreatic cancer. MoniqueVizel-Schwartz, an impartial medical specialist to whom the case was referred by the WCLJ,stated in her report that decedent's cancer could likely have been causally related to his on-the-jobexposure to carcinogenic substances. However, Vizel-Schwartz also stated on cross-examinationthat there did not appear to be any absolute evidence that asbestos is related to pancreatic cancerand, in a colloquy with the WCLJ, clarified that she never stated that asbestos directly causedpancreatic cancer, she simply stated that asbestos is a carcinogen that "may be linked" todecedent's pancreatic cancer. Inasmuch as the resolution of conflicting medical opinions is withinthe province of the Board, particularly where the conflict concerns the issue of causation, we findthat the decision of the Board was supported by substantial evidence (see Matter of Baer vEden Park Nursing Home, 51 AD3d at 1344-1345; Matter of Hare v Champion Intl., 50 AD3d 1254, 1255 [2008]).
Cardona, P.J., Rose, Kane and Kavanagh, JJ., concur. Ordered that the decision is affirmed,without costs.