NY Claimant Establishes Aspergillosis Claim as an Accidental Injury

Court’s Ruling of No Occupational Disease Does Not Bar Claim (After Remittal) for Accidental Injury

Where a New York appellate court reversed the state Workers’ Compensation Board’s finding that a claimant suffered from an occupational disease (allergic bronchopulmonary aspergillosis) and remitted the matter to the Board for further proceedings, the Board was free to consider a new theory—accidental injury—for the claim and its determination that the claimant had indeed sustained an accidental injury arising out of and in the course of the employment was supported by substantial evidence [Matter of Connolly v. Covanta Energy Corp., 2019 N.Y. App. Div. LEXIS 4297 (May 30, 2019)].


Claimant, a maintenance planner/mechanic at a garbage recycling and energy production facility, coughed up blood in December 2010 and, following a lung biopsy in March 2011, was diagnosed with allergic bronchopulmonary aspergillosis as a result of his exposure to aspergillus fungus, a type of mold. Claimant filed a claim for workers’ compensation benefits, contending that he had sustained an occupational disease by the inhalation of the mold at work. The Board affirmed a decision of the WCLJ finding that claimant sustained an occupational disease. The employer appealed and the appellate court reversed, finding that there was insufficient medical evidence to establish that claimant sustained an occupational disease. The Board remitted the case to the Board for further proceedings.

On Remittal: Was Condition an Accidental Injury?

Upon remittal, the Board restored the matter to the trial calendar for development of the record on the issue of whether claimant’s allergic bronchopulmonary aspergillosis constituted an accidental injury. The employer contended that the Board could not at that point consider a new theory for the injury. It also sought to preclude consideration of medical reports and testimony from Eckardt Johanning, a physician who had examined claimant, claiming that the doctor’s reports did not comply with the N.Y. Workers’ Comp. Law § 137. The WCLJ denied the motion, and on appeal, the Board affirmed. The WCLJ ultimately ruled that a claim for an accidental injury was established with an accident date of May 19, 2011 — the date of diagnosis. The Board affirmed, and the employer appealed.

Denial of Claim in Occupational Disease Category Not Definitive

Initially, the court stressed that upon remittal, the Board was free to consider the new theory for the claim. Specifically, denial of a claim in the occupational disease category was not definitive for an accidental injury in the workplace category.

The Physician Was Not an IME

Second, the court allowed that Dr. Johanning’s medical reports had not been prepared in connection with the workers’ compensation claim, but with regard to claimant’s third party claim. Moreover, the physician was not an independent medical examiner, inasmuch as he had examined the claimant on multiple occasions and had consulted with the claimant regarding his medical treatment for allergic bronchopulmonary aspergillosis.

Based on the foregoing, the court found that substantial evidence supported the Board’s determination that claimant had sustained an accidental injury.

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