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Matter of Usewicz v. Nozbestos Constr. Corp.
Citation: 2018 NY Slip Op 1107Docket: 525123
Court: Appellate Division of the Supreme Court of the State of New York; February 14, 2018; New York; State Appellate Court
Original Court Document: View Document
The Appellate Division, Third Department, affirmed a decision by the Workers' Compensation Board that found no causal relationship between Zdzislaw Usewicz's occupational lead exposure and his loss of earnings. Usewicz, an asbestos handler involved in the World Trade Center recovery efforts in 2001, had previously established a Workers' Compensation Law article 8-A claim for various injuries, including depression and asthma, following his termination from Abatech Industries on July 28, 2012. He subsequently filed a claim for lead exposure after alleging continuous work in a lead-contaminated environment for over 12 years. The Workers' Compensation Law Judge (WCLJ) recognized his occupational disease claim, linking the last lead exposure to November 3, 2011, while working for Nozbestos Construction Corporation. The WCLJ determined that Usewicz's loss of earnings was causally unrelated to lead exposure, attributing it solely to the conditions outlined in his article 8-A claim. The Board upheld this ruling upon administrative review. Usewicz argued that his loss of earnings was partially related to his lead exposure. However, the court maintained that the Board's factual determinations are upheld if supported by substantial evidence. Testimonies indicated Usewicz was unable to work due to excessive coughing and self-reported memory issues, with his physician confirming he could work if he avoided lead exposure. The court ultimately concluded that the evidence did not support Usewicz's claims regarding the causal link between lead exposure and his loss of earnings. Janet Rucker, a physician treating the claimant since June 2010, suggested in August 2013 that the claimant's cognitive issues might stem from low to moderate metal toxicity but are likely influenced by multiple factors, including depression-related pseudodementia, for which the claimant was actively receiving psychiatric treatment. John Meyer, another treating physician, noted in November 2015 that while the claimant's lead exposure could contribute to his inability to work, the primary causes of his disability were medical conditions related to his work at the World Trade Center and a history of asbestos handling. Other physicians acknowledged the claimant's disability but did not specifically link it to lead exposure. The absence of medical evidence establishing a direct connection between the claimant's inability to work and lead exposure, along with a 2012 statement from his treating physician indicating he could work if lead exposure was avoided, supports the Board's finding of no causally-related loss of earnings. The Board's decision is affirmed without costs. Additionally, the claimant has been awarded workers' compensation benefits for a permanent partial disability since July 28, 2012, and has a separate claim for hearing loss.