State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 6, 2016 522128 

________________________________

In the Matter of the Claim of

BRUNO DONATO,

Appellant,

v

TACONIC CORRECTIONAL FACILITY MEMORANDUM AND ORDER

et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: September 14, 2016

Before: McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

__________

Law Office of Joseph A. Romano, New York City (Joseph A.

Romano of counsel), for appellant.

William O'Brien, State Insurance Fund, Melville (Peter

Lampasona of counsel), for Taconic Correctional Facility and

another, respondents.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed January 27, 2015, which ruled that claimant did not sustain

a causally related injury and denied his claim for workers'

compensation benefits.

In July 2013, claimant, a correction officer, was diagnosed

with acute bronchitis and reactive airway disease secondary to an

infection and, as a result, was out of work from July 29, 2013
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through September 16, 2013. He filed a claim for workers'

compensation benefits asserting that his diagnosis was the result

of his exposure to bacteria while transporting a prisoner aboard

a commercial flight. Following a hearing, a Workers'

Compensation Law Judge found that claimant established a causal

relationship between his diagnosis and his employment and awarded

benefits for the period of time that he was out of work. Upon

review, the Workers' Compensation Board reversed, finding that

the medical evidence submitted by claimant was insufficient to

support an award of benefits. Claimant appeals and we affirm.

Initially, we need not consider the applicability of

Workers' Compensation Law § 21 inasmuch as the determination as

to causal relationship, or the lack thereof, in this matter was

not based upon the presumption contained therein but, instead,

upon the medical evidence and testimony adduced as part of the

underlying hearing (see Matter of Hartigan v Albany County

Sheriff's Dept., 140 AD3d 1258, 1259 [2016]; Matter of Roberts v

Waldbaum's, 98 AD3d 1211, 1211 [2012]). Turning to the merits,

it was claimant's burden to establish a causal relationship

between his pulmonary injury and his workplace activities (see

Matter of Hartigan v Albany County Sheriff's, 140 AD3d at 1259;

Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014

[2014]). Where, as here, "medical proof is relied upon to

demonstrate the existence of a causal relationship, it 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" (Matter of Granville v Town of Hamburg, 136 AD3d

1254, 1255 [2016] [internal quotation marks and citation

omitted]).

Claimant testified that, one day after transporting a

prisoner aboard a commercial airline flight, he became short of

breath and, over the following two days, the symptoms progressed

to the point where he was having difficulty breathing such that

he checked himself into the hospital. At the hospital, claimant

was diagnosed with acute bronchitis and reactive airway disease

secondary to an infection. He claims that the acute bronchitis

and reactive airway disease was caused by his exposure to

airborne bacteria or viruses on the flight. In support of his

claim, claimant offered the reports of two of his treating
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physicians, Avraham Henoch and Reno DiScala. Henoch's report

indicated that claimant was a passenger on an airplane that was

reported to have bad ventilation. However, Henoch offered no

specific opinion as to whether this was the cause of claimant's

acute bronchitis or restrictive airway disease. Further,

although DiScala testified that claimant's diagnosis was the

result of this work-related travel, he based his opinion on his

general assertion that upper respiratory illnesses are commonly

caused by air travel. On cross-examination, however, he

acknowledged that claimant could have contracted the subject

infection anyplace and that, based on the history of air travel

reported by claimant, he made the assumption that claimant

contracted the underlying infection while on the airplane. 

Sotirios Kassapidis, a specialist in pulmonary critical care who

examined claimant 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. While the Board can

certainly rely upon a medical opinion as to causation even if it

is not absolute or certain (see Matter of Norton v North Syracuse

Cent. School Dist., 59 AD3d 890, 891 [2009]), it is also free to

disregard the medical evidence that it finds unconvincing (see

Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890, 892

[2008]). Where, as here, the only evidence submitted in support

of causal relationship is speculative, it fails to demonstrate a

reasonable probability as to the cause of an injury and, in turn,

falls short of the required degree of medical proof. 

Accordingly, we find that the Board's decision denying claimant

benefits was supported by substantial evidence (see Matter of

Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d at 892).

McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.
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ORDERED that the decision is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court