Indefinite Medical Testimony Sinks NY Claimant’s Occupational Disease Claim
A New York appellate court held that where a physician testified that a claimant developed neck and shoulder pain “due to repetitive stress and forceful use of the upper extremities at the job using heavy machinery,” yet was unaware of (a) either the specific motions required or the tools utilized by the claimant on a daily basis, (b) the amount of time that claimant spent each day performing repetitive tasks, and (c) other relevant facts related to the claimant’s work, the state’s Workers’ Compensation Board was justified in affirming a WCLJ’s decision that the claimant had not tendered sufficient evidence to establish a causal connection between his work activities and his claimed occupational disease [Matter of Bonet v. New York City Transit Auth., 2022 N.Y. App. Div. LEXIS 3335 (3d Dept. May 26, 2022)].
Background
Prior to retirement, the claimant worked for the employer for 29 years in various capacities, including as a track worker/specialist operator. In that dual role, claimant was responsible for track repairs, which included transporting tools to and from the work site, and operating heavy equipment. Although claimant apparently began experiencing pain in his neck and shoulders during the last three or four years of his employment, he did not incur any lost time from work or seek medical treatment prior to retiring.
Shortly after retiring, however, claimant filed a claim for workers’ compensation benefits alleging repetitive stress injuries to his neck and shoulders. Following a hearing and the deposition of claimant’s treating physician, a WCLJ found that claimant did not tender sufficient evidence to establish a causal connection between his work activities and the claimed occupational disease. The Board affirmed and the claimant appealed.
Appellate Court Decision
Initially, the court stressed that in order to establish an occupational disease, the claimant was required to demonstrate a recognizable link between his condition and a distinctive feature of his employment. The court added that where, as here, the claimant relied upon medical proof to demonstrate the existence of a causal relationship, that proof must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility.
The court acknowledged that claimant had testified at length regarding the various tasks he performed during the course of his employment, including the specific tools he utilized and the repetitive motions associated therewith. The court said that the his treating physician’s knowledge of claimant’s work history and job requirements was far less detailed. The court added that neither the reports filed by claimant’s treating physician nor his deposition testimony reflected that he had adequate knowledge of any of claimant’s specific job duties, except in the most generalized sense, or the amount of time spent on those duties.
According to the court, the physician was unaware of either the specific motions required or the tools utilized by claimant on a daily basis, the amount of time that claimant spent each day performing repetitive tasks, claimant’s last day of work or the date upon which claimant retired. The physician, who last examined claimant in early March 2020, also apparently had not reviewed the results of the MRI conducted later that month. The court said that in light of the “less-than-compelling medical evidence” tendered by the claimant, substantial evidence supported the Board’s findings.
Commentary
This decision illustrates the important point that conclusory opinions as to medical causation are generally insufficient [see Larson’s Workers’ Compensation Law, § 128.01, et seq.]. The expert opinion must be based upon the specific conditions of the employee’s employment. A physician’s opinion, based upon a claimant’s testimony that the conditions were “dusty,” or that the work was “strenuous” or “repetitive” is generally insufficient. The issue becomes “how dusty,” “how strenuous” and “how repetitive” were the claimant’s work activities. Where, as here, the physician could not testify that he knew, for example, how many times a strenuous process was performed each day, the physician could not then opine that the claimant’s medical condition was caused by his employment. Most courts and boards are much more lenient with cautious medical testimony than they are with the sort of testimony which is conclusory and insufficiently tied to the claimant’s actual work.