For many of us, it’s uncanny. Within a few days of flying on a commercial jet, we come down with some sort of cold or bronchial disorder. Our intuition tells us that there is a correlation between our time trapped in the flying tube and the sudden onset of our illness. Proving that connection is, of course, a more difficult task. Something more than a temporal correlation must be shown. A New York appellate court recently discussed the difficulty of proving such claims and affirmed a decision by the state’s Workers’ Compensation Board denying benefits to a state corrections officer who claimed he contracted acute bronchitis while transporting a prisoner on a commercial airline flight. The appellate court acknowledged that the officer had presented two medical opinions loosely tying the sickness to the trip, but the court said that opinion was too speculative to be substantial evidence to prove the work-connectedness of the officer’s medical condition [see Matter of Donato v Taconic Corr. Facility, 2016 N.Y. App. Div. LEXIS 6421 (3rd Dept., Oct. 6, 2016)].
The correction officer was diagnosed with acute bronchitis and reactive airway disease secondary to an infection and, as a result, was out of work for about six weeks. He sought workers’ compensation benefits, contending that his sickness was the result of exposure to bacteria while transporting a prisoner aboard a commercial flight. A Workers’ Compensation Law Judge found that he had established a causal relationship between his diagnosis and his employment and awarded benefits for the period of time that he was out of work. The Board reversed.
Conflicting Medical Evidence
To support his claim, the officer offered the reports of two of his treating physicians. The first physician’s report indicated that the officer was a passenger on an airplane that was reported to have bad ventilation. However, the physician offered no specific opinion as to whether this was the cause of the officer’s acute bronchitis or restrictive airway disease. The second physician testified that the officer’s diagnosis was the result of his work-related travel, but he based his opinion on his general assertion that upper respiratory illnesses are commonly caused by air travel. On cross-examination, however, the second physician acknowledged that the officer could have contracted the subject infection anyplace and that, based on the history of air travel reported by the officer, he made the assumption that the officer contracted the underlying infection while on the airplane.
A third expert, a specialist in pulmonary critical care who examined the officer while he was in the hospital and was provided with the same medical history, testified that he could not form any opinion with regard to causality.
Speculative Medical Opinion
The appellate court indicated that where, as here, the only evidence submitted in support of causal relationship was speculative, it failed to demonstrate a reasonable probability as to the cause of the injury and, in turn, fell short of the required degree of medical proof. Accordingly, the Board’s decision denying claimant benefits was supported by substantial evidence.