Workers' Compensation

New York: Employee Fails to Establish Claim for Allergic Aspergillosis Due to Alleged Mold at Work







A New York appellate court reversed a decision of the state’s Workers’ Compensation Board that concluded that an employee who worked for some 23 years at a garbage recycling and energy production facility had sustained an occupational disease in the form of allergic bronchopulmonary aspergillosis as a result of the employee’s exposure to the aspergillus fungus, a type of mold. The employer had contested the claim, contending that the employee failed to establish a causal connection between his employment and his disease. The appellate court noted that there was no dispute that the employee suffered from the condition. It also noted that the employee had presented expert medical evidence that the employee’s respiratory condition was causally related to his exposure to the aspergillus fungus at work. That expert acknowledged, however, that the aspergillus fungus was a common source of pulmonary problems and could be found almost anywhere and, further, that he was unable to pinpoint exactly where or when the employee’s exposure occurred, or that it was definitely at the employer’s plant. The court noted that a second pulmonary specialist opined that the employee’s respiratory condition was not causally related to his employment. The court held that because the aspergillus fungus was ubiquitous and found in soil everywhere and that the employee could have been exposed in an industrial setting or at home in his own backyard, he had not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

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See Connolly v. Covanta Energy Corp., 2014 N.Y. App. Div. LEXIS 8995 (3rd Dept., Dec. 31, 2014) [2014 N.Y. App. Div. LEXIS 8995 (3rd Dept., Dec. 31, 2014)]

See generally Larson’s Workers’ Compensation Law, § 52.03 [52.03]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.









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