Thought Leadership

The pro se petitioner appealed from a workers’ compensation order finding that his injuries were not causally related to his employment. The petitioner filed two claims, both seeking medical and temporary benefits from the respondent. He began working for the respondent in January 2016 and testified that he had to use his own car for work, but that the respondent provided a gas card, credit card and company phones. About three months later, he serviced his car at Holman Cadillac and testified that he noticed a chemical order in his car afterward. A week later, he turned on the air conditioner and noticed a stronger odor. He turned it off, stopped to see a client and then stopped at a restaurant to rinse his mouth, at which point he started coughing up blood.

The petitioner hired Eagle Industrial Hygiene Associates to test the air quality of his car, and in their report, they noted they detected an odor after operating the air conditioner for 1.5 hours. A few weeks later, they issued another report, noting the products used for his car included some dangerous components. On an especially hot day, he used the air conditioner again, causing him to go to the emergency room again. Several months later, the respondent filed a workers’ compensation claim with the carrier, which was denied, and the petitioner then filed the claim petitions. 

About three years after the initial exposure, the petitioner retained Research Triangle Park Laboratories (RTPL) to analyze the cooling coil coating, which the petitioner confirmed Holman Cadillac used to service his car. He provided this report to Eagle to author a third report. On the issue of causation, the petitioner retained Dr. Lawrence Guzzardi., who acknowledged he was not treating patients, had not been affiliated with any hospital since 2016 and most of his income came from his real estate business. Dr. Guzzardi opined the petitioner’s injuries were due to exposure to the chemicals. In response, the respondent offered up the testimony of Dr. Howard Kipen (toxicologist) and Dr. Samuel Kahnowitz (pulmonologist). Both opined there was no causal link between the petitioner’s symptoms and the alleged exposure. Afterwards, the judge issued an extensive written decision, finding the respondent’s experts were more credible and, thus, the petitioner failed to establish causation. 

The petitioner appealed, and the Appellate Division found no basis to disturb the judge’s decision. Specifically, there was no reason to disturb Dr. Kahnowitz’s qualifications as an expert or to not accept his testimony. The court also rejected the contention that the respondent’s experts only offered net opinions. Rather, the Appellate Division noted both experts provided the reasons for their conclusions.  

_{What’s Hot in Workers’ Comp, Vol. 28, No. 4, April 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}