Matter of Phelan v. Bethpage State Park, New York State Department of Parks & Recreation ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 26, 2015 519016
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In the Matter of the Claim of
DANIEL PHELAN,
Appellant,
v
BETHPAGE STATE PARK, NEW YORK MEMORANDUM AND ORDER
STATE DEPARTMENT OF PARKS &
RECREATION, et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
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Calendar Date: February 10, 2015
Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ.
__________
John F. Clennan, Ronkonkoma, for appellant.
William O'Brien, State Insurance Fund, Melville (Tommasino
Salvatore Conte of counsel), for Bethpage State Park, New York
State Department of Parks & Recreation and another, respondents.
__________
Lynch, J.
Appeal from a decision of the Workers' Compensation Board,
filed August 14, 2013, which ruled that claimant did not sustain
a causally related occupational disease and denied his claim for
workers' compensation benefits.
Claimant worked outdoors performing maintenance and grounds
keeping at a state park for over 35 years. In February 2010, he
developed a diabetic ulceration with a secondary formation of
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osteomyelitis, described as an infection in the bone, near the
first metatarsal head of the right foot, which required surgery
and, later, partial amputation of his right foot. Claimant
stopped working in May 2010 and filed a claim for workers'
compensation benefits, alleging that his condition was the result
of exposure to the cold while working outside. The employer and
its workers' compensation carrier controverted the claim upon the
ground that, among others, claimant's condition was the result of
diabetes and not a result of the nature of his work, which did
not cause the condition. Following hearings, a Workers'
Compensation Law Judge determined that claimant had sustained a
causally related occupational disease to his right foot with a
date of disablement of March 10, 2010, and awarded him benefits.
On review, the Workers' Compensation Board reversed, finding no
causally related occupational disease and disallowed the claim.
Claimant now appeals.
We affirm. An occupational disease is "a disease resulting
from the nature of employment and contracted therein" (Workers'
Compensation Law § 2 [15]). To be entitled to workers'
compensation benefits for a condition as an occupational disease,
"a claimant must establish a recognizable link between his or her
condition and a distinctive feature of his or her occupation
through the submission of competent medical evidence" (Matter of
Connolly v Covanta Energy Corp., 123 AD3d 1394, 1395 [2014]
[internal quotation marks and citations omitted]; see Matter of
Satalino v Dan's Supreme Supermarket, 91 AD3d 1019, 1019 [2012]).
Further, "medical 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 at 1019
[internal quotation marks and citations omitted]; see Matter of
Manka v Goodyear Tire & Rubber Co., 123 AD3d 1172, 1173 [2014]).
Here, claimant, a diabetic since 1991, testified that in
February 2010, he developed a skin fissure or crack in the side
of his right foot that developed into an ulcer and, later, became
infected, which he attributed to exposure to cold weather.
However, "[a]n occupational disease derives from the very nature
of the employment, not a specific condition peculiar to an
employee's place of work" (Matter of Mack v County of Rockland,
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71 NY2d 1008, 1009 [1988]) nor from "an environmental condition
specific to the place of work" (Matter of Ball v New Era Cap Co.,
21 AD3d 618, 619 [2005]; see Matter of Engler v United Parcel
Serv., 1 AD3d 854, 855 [2003]). Because claimant alleged that
his condition resulted from the environment in which he worked,
rather than from any distinctive feature of his maintenance and
grounds keeping work, the Board properly denied his claim.
Further, Peter Cutler, the carrier's podiatrist who
examined claimant almost two years after the onset of the ulcer,
testified that diabetes and other factors may have contributed to
claimant's condition, concluding that there was a "strong
possibility that cold weather was one of the causative factors."
Michael Livingston, claimant's treating podiatrist, also
testified that there were many potential causes of his condition,
including diabetes and other medical conditions as well as the
cold weather, and then opined that his condition was "in part"
due to extreme weather conditions. He conceded, however, that he
did not know what caused the condition, a concession upon which
the Board relied. "The Board was free to reject this less than
compelling medical evidence," and its finding that claimant did
not submit credible medical evidence of a causally related
occupational disease is supported by substantial evidence (Matter
of Cunningham v New York City Tr. Auth., 122 AD3d 1042, 1043
[2014]). Claimant's remaining contentions also lack merit.
Lahtinen, J.P., Garry and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court