State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 4, 2014 517982 

________________________________

In the Matter of the Claim of

SARAH MANKA,

Respondent,

v

MEMORANDUM AND ORDER

GOODYEAR TIRE AND RUBBER

COMPANY et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 6, 2014

Before: Lahtinen, J.P., McCarthy, Egan Jr., Devine and

 Clark, JJ.

__________

Goldberg Segalla, LLP, Buffalo (Gail C. Ford of Vorys,

Sater, Seymour & Pease, LLP, Columbus, Ohio, admitted pro hac

vice), for appellants.

Lipsitz & Ponterio, LLC, Buffalo (Dennis P. Harlow of

counsel), for Sarah Manka, respondent.

Eric T. Schneiderman, Attorney General, New York City

(Steven Segall of counsel), for Workers' Compensation Board,

respondent.

__________
-2- 517982 

Lahtinen, J.P.

Appeal from a decision of the Workers' Compensation Board,

filed February 22, 2013, which, among other things, ruled that

the death of claimant's husband was causally related to his

employment.

David Manka (hereinafter decedent) worked for the employer

from 1987 to 2003 and, during the early years of his employment,

his duties included testing samples of ortho-toluidine, which is

known to cause bladder cancer. Decedent was diagnosed in 2007

with ureteral cancer and died from the disease in 2008. 

Claimant, decedent's widow, filed for workers' compensation death

benefits. The employer controverted the claim asserting, among

other things, the absence of a causal link between exposure to

ortho-toluidine and ureteral cancer. The Workers' Compensation

Law Judge credited claimant's expert regarding causation and

found that decedent had died as a result of an occupational

disease. The Workers' Compensation Board affirmed. The employer

and its workers' compensation carrier (hereinafter collectively

referred to as the employer) now appeal.

The employer argues that, although there are studies

linking ortho-toluidine exposure to bladder cancer, there are no

established links of such exposure to ureteral cancer and, thus,

claimant failed to establish causation. "In a claim for workers'

compensation benefits based upon occupational disease, the

claimant must establish a recognizable link between his or her

condition and a distinctive feature of his or her employment"

(Matter of Ferraina v Ontario Honda, 32 AD3d 643, 644 [2006]

[citations omitted]; accord Matter of Dosztan v Kraft Foods, 113

AD3d 1007, 1008 [2014]).1 "[M]edical opinions regarding a causal

relationship must signify a probability as to the underlying

cause of the claimant's injury which is supported by a rational

basis" (Matter of Satalino v Dan's Supreme Supermarket, 91 AD3d

1019, 1019 [2012] [internal quotation marks and citations

omitted]; see Matter of Bilow v Town of Chateaugay, 151 AD2d 845,

1 Here, claimant had to prove that her spouse (decedent)

had the condition and it was related to his employment.
-3- 517982 

846 [1989]). When considering a claim for benefits, the Board is

"not . . . bound by common law or statutory rules of evidence"

(Workers' Compensation Law § 118; see Matter of Carroll v

Knickerbocker Ice Co., 218 NY 435, 440 [1916]; Matter of Paiz v

Coastal Pipeline Prods. Corp., 9 AD3d 717, 718 [2004]). The

Board "is vested with the discretion to assess the credibility of

medical [proof] and its resolution of such issues is to be

accorded great deference, particularly with respect to issues of

causation" (Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998,

998-999 [2013] [internal quotation marks and citations omitted]). 

Claimant's expert proof included reports by Steven

Markowitz, an occupational and environmental physician, who

conducted a study of employees who worked at the facility where

decedent was exposed to ortho-toluidine and found a statistically

significant link between such exposure and bladder cancer. 

Although he acknowledged a lack of studies directly concluding

that ortho-toluidine causes ureteral cancer, he explained that

ureteral cancer is difficult to study because it is very rare. 

He pointed to scientific literature concluding that the suspected

occupational causes of ureteral cancer were similar to the causes

established for bladder cancer. After noting that decedent did

not smoke or have any other known risk factor for ureteral

cancer, he related that decedent was definitely exposed to orthotoluidine, ortho-toluidine is a human bladder carcinogen, ureters

have the same type of cells as the bladder, ureters are directly

connected to the bladder, and urinary carcinogens flow through

the ureters to reach the bladder. Markowitz found the link

between ortho-toluidine exposure and ureteral cancer to be

"highly plausible" and opined to a reasonable degree of certainty

that decedent's cancer stemmed from such exposure. While the

employer's experts disagreed with Markowitz and a different

conclusion by the Board would have been reasonable, substantial

evidence nonetheless supports the Board's determination. 

McCarthy, Egan Jr., Devine and Clark, JJ., concur.
-4- 517982 

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court