The Full Board, at its meeting on October 22, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on February 14, 2013.
The issues presented for Mandatory Full Board Review are:
In a decision filed on December 13, 2011, the Workers' Compensation Law Judge (WCLJ) found that there was no injurious exposure to asbestos while the claimant was working for the employer of record.
The Board Panel majority found that the claimant's last injurious exposure to asbestos occurred while the claimant was working for the employer of record. The Board Panel majority also established the case for the occupational disease of asbestosis pursuant to Workers' Compensation Law (WCL) § 3(2)(29).
The dissenting Board Panel member would affirm the WCLJ's decision.
On March 1, 2013, the carrier filed an application for Mandatory Full Board Review, arguing that the claimant's testimony was equivocal, at best. The carrier further states that the employer witnesses testified with considerable assurance that Atlantic Terminal jobsite had been new construction, that there was no asbestos present, and that any asbestos in areas around their jobsite would have been abated. The carrier renewed its requests that the WCLJ decision to be affirmed.
On March 31, 2013, the claimant filed a rebuttal asserting that his last injurious exposure to asbestos had occurred while he had been working for the employer of record at the Atlantic Terminal jobsite. Claimant requested that the majority opinion be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, then a 55 year old sheet metal worker, filed a C-3 (Employee Claim) on February 8, 2011, in which he alleged that he had contracted "asbestosis, COPD, respiratory [sic]" from his asbestos exposure while working for the employer of record at the Atlantic Avenue Terminal at the Brooklyn Yard. The claimant indicated that the exposure to asbestos occurred when he was installing hangers and ductwork throughout the building in the ceiling and walls. The carrier controverted the claim on several grounds.
According to a November 17, 2010, medical report from Dr. Bernal, the claimant was given several diagnoses, including "[h]istory of Asbestos Exposure...with pleural calcifications consistent with asbestosis."
The claimant testified by telephone at the hearing on September 28, 2011, that he worked as a sheet metal worker for Local 20. In 2010, Dr. Bernal of Florida diagnosed him as having a lung problem related to asbestos. The last time he was exposed to asbestos was while working for AABCO (AABCO Sheet Metal & Speed Sheet Metal, the employer of record) at Atlantic Terminal, Downtown Terminal. The claimant indicated that while on that job, his supervisor took him downstairs just above the old transit police station to install a piece of duct, and there was asbestos all over the pipe. Claimant could not remember exactly when that job took place, and stated it was somewhere around December of 2005 or January of 2006. He did other jobs for AABCO after the Atlantic Terminal job. However, those jobs involved new buildings that were up to code. Claimant admitted that he would have to review his old pay stubs to properly determine the different jobs and dates upon which he worked. The WCLJ subsequently directed the claimant to produce pay stubs from AABCO and other companies mentioned by the claimant during his testimony, and adjourned the hearing.
At the hearing held on October 26, 2011, the claimant testified by telephone that he had his pay stubs and pension statement in front of him, and that claimant's attorney also had copies of those documents. Claimant stated that in accordance with his pay stubs, the last time he worked on a job where he was exposed to asbestos was while working for AABCO at the Atlantic Terminal, between December 2003 and February 2004. He could not recall any jobs after February 2004 where he was exposed to asbestos. At the Atlantic Terminal, the claimant and a co-worker were repairing a duct that was going to connect an old building to a new building; claimant explained that they were digging hangers and cutting and attaching old ducts (from an old building) to new ducts (in a new building), underground over the subway. On cross-examination, the claimant testified that he knew asbestos was located on the pipe because he had been trained to identify asbestos. The claimant further testified that his supervisor at the time knew the pipe was covered in asbestos. Despite there being asbestos, the claimant did the work he was supposed to do and got out as fast as possible. The claimant admitted on cross-examination that he had smoked cigarettes for twenty-five years. He quit in 2008 when he was diagnosed with colon problems, high blood pressure, and spots on his lungs. The claimant believed that he was exposed to asbestos in past sheet metal jobs, prior to the Atlantic Terminal job. The claimant was laid off in February 2008 and subsequently obtained a disability retirement from the union based on a back/neck condition. At the end of the hearing, the WCLJ found prima facie medical evidence for pleural asbestosis and directed the carrier to produce an IME within seventy-five days. The case was continued for the testimony of two employer witnesses.
At the hearing on December 8, 2011, the claimant's field superintendent testified that he had been employed by AABCO for twenty-five years. He was the claimant's field superintendent on the Atlantic Terminal job. He did not know whether the job site contained asbestos. The building they worked on was fairly new and they were doing the final tie-in of duct work. If there had been asbestos, he believed that it would have been abated and that there would have been signs to indicate that the area was unsafe. He also believed that because the MTA and Long Island Railroad are strict when it comes to asbestos abatement, that it would have been taken care of, and that nevertheless, there would not have been asbestos present in an office building that was built a year prior to AABCO performing its work there. The superintendent did not recall the claimant having reported to him that asbestos was present at the work site. However, on cross-examination, he conceded that there had been more than one job going on at that particular jobsite and it may not have been him that the claimant would have talked to concerning a pipe.
The employer's comptroller also testified at the December 8, 2011, hearing. He indicated that the claimant worked at the Atlantic Terminal jobsite at total of sixty-seven hours between July 30, 2003, and January 31, 2004. The comptroller further testified that had there been asbestos detected at the jobsite, no one would have been allowed thereon. At the end of the hearing, summations were given and the WCLJ made a ruling on the record that the claim against AABCO was disallowed as she found no injurious exposure to asbestos with the employer.
The WCLJ's findings were memorialized in a decision filed on December 13, 2011, where it was found that the claimant's testimony had been inconsistent and that the claimant conceded that he had a faulty memory; that the employer's witnesses were more credible and that the claimant had not been exposed to asbestos on the Atlantic Terminal job; and that there was no injurious exposure to asbestos while the claimant was working for the employer of record. No further action was directed. The claimant's application for review was filed shortly thereafter.
While the review application was pending, the carrier submitted its independent medical examination report from Dr. Hermann. Dr. Hermann, who examined the claimant on November 30, 2011, diagnosed chronic obstructive pulmonary disease (COPD) and restrictive lung disease, and indicated that the claimant "has a reliable history of asbestos exposure from findings of interstitial lung disease on spirometry and pleural calcifications which are indicative of asbestosis." Although Dr. Hermann stated in her report that the claimant was not a smoker and denied ever having been a smoker, she also stated that she had reviewed Dr. Bernal's November 17, 2010, report. Dr. Bernal had specifically stated in the first paragraph of his report that the claimant was "a former smoker who accumulated 50 pack years prior to quitting in 2008."
In addition, the claimant submitted to the Board a copy of a document from the National Training Fund for the Sheet Metal and Air Conditioning Industry indicating that he had completed a 32-hour approved course of instruction in asbestos abatement, removal, and disposal in November 1989.
In a claim, such as the present one, involving a dust disease such as asbestos the employer in whose employment the last injurious exposure occurred is liable for the claimant's compensation and medical benefits (see WCL § 44-a; Matter of Kotakis v L&J Concrete Corp., 39 AD2d 788 ). The question of when a claimant last had an injurious exposure to a dust hazard pursuant to WCL § 44-a is a question of fact for the Board to resolve, and the Board's determination will not be disturbed if supported by substantial evidence (Matter of Ward v General Utils, 100 AD3d 1113 ).
Here, the claimant's confusion in his testimony only pertained to the period of time for which he was working for the employer of record at the Atlantic Terminal jobsite, and that when he appeared for the second time on October 26, 2011, with his paystubs in front of him, he testified that he worked at that jobsite from December 2003 to February 2004, the timeframe corroborated by the testimony of the employer's comptroller. The claimant was very clear in his testimony that he was last exposed to asbestos while working at the Atlantic Terminal jobsite.
As determined by the Board Panel majority, the claimant's testimony regarding the presence of asbestos at the Atlantic Terminal jobsite was more credible than that of either of the employer's witnesses. The claimant testified that he had been doing ductwork at the Atlantic Terminal jobsite, and that he was working with a co-worker to connect ductwork from an old building to the new building, underground over the subway. The asbestos to which he had been exposed was around pipes that had been cut out so he could place hangers and attach the old ducts to the new ducts through the same area. He knew it was asbestos because he had been trained to identify asbestos.
Conversely, the employer's field superintendent testified that he had no idea if there had been asbestos in the areas in which they were working at the Atlantic Terminal jobsite, but he did not think there was a problem since the office that they were tying into at the job site with the claimant was "maybe a year old" and so there would not have been any asbestos there; but he later conceded that there had been more than one job going on at that particular jobsite. Similarly, the testimony of the comptroller was also based on conjecture as he testified that he would not have personally known or dealt with an asbestos issue on the job but that workers would not have been allowed on the jobsite had there been asbestos.
Therefore, based upon a review of the record and the preponderance of the evidence in the record, the Full Board finds that the claimant's last injurious exposure to asbestos occurred on January 31, 2004, while the claimant was working at the employer's Atlantic Terminal jobsite.
ACCORDINGLY, the WCLJ decision filed on December 13, 2011, is REVERSED. The Full Board finds the claimant's last injurious exposure to asbestos occurred on January 31, 2004, while the claimant was working for the employer of record. The case is established for the occupational disease of asbestosis pursuant to WCL § 3(2)(29). The case is reopened and returned to the trial calendar to address the issues of the date of disablement and causality with respect to the other medical conditions claimed, as well as any other outstanding issues.