by John Ned Lipsitz

If your spouse or parent dies of a disease caused by toxic exposure at work, including lung disease and cancer, you are entitled to file a claim for death benefits under the New York State Workers’ Compensation Law, provided that your claim is filed within two years of the date of death.

The firm of Lipsitz, Ponterio & Comerford handles many occupational death claims and gives each case prompt and thorough attention. Where necessary, we obtain a medical expert to review the facts of the case and provide an opinion concerning the connection between industrial exposure and death. Although an individual may die of multiple causes, if occupational disease cuts short the life of a family member even one day sooner than he otherwise would have died, the surviving spouse may be entitled to lifetime benefits under the law.

In recent months, employers and the insurance companies that provide workers’ compensation insurance coverage have become increasingly hostile to claims of death caused by industrial disease. The insurance industry is reluctant to recognize and deal with its responsibility to pay claims under the Workers’ Compensation Law. Consequently, we have been fighting harder, and in some cases longer, in order to establish death cases under the Workers’ Compensation Law.

In one recent case, involving exposure to carcinogens at the Hooker Chemical Plant on Buffalo Avenue in Niagara Falls, the treating doctor expressed his opinion that our client’s exposure placed him at an increased risk for the development of bladder cancer from which he ultimately died. Based on this opinion, the workers’ compensation judge found that there was sufficient evidence to proceed with further development of the case, precisely because the doctor’s opinion constituted some evidence of an occupational disease causally related to exposures experienced during the course of employment and because there was a probability that those exposures constituted the cause of the disease. The employer and its workers’ compensation insurance carrier appealed this decision, and our attorneys were able to persuade the Board that the workers’ compensation judge was correct in his initial decision.

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Several months later, in another case, this time involving a claim that occupational exposure to asbestos over the course of a career as an ironworker was the cause of lung cancer, the workers’ compensation judge ruled against the family’s claim of occupationally related death. Our attorneys appealed from this decision and successfully persuaded the Board that the judge was wrong and that indeed the opinion of our medical expert, a specialist in pulmonary disease, was sufficient to move the case forward. The Workers’ Compensation Board ruled that the medical expert’s opinion must set forth an accurate history of a work related occupational disease, a diagnosis, and a statement that there is a causal relationship between the work place exposure and the diagnosis. Applying that ruling to the facts before it, the Board found that our expert’s opinion did indeed satisfy this standard.

The Board’s decision made it clear that, as long as a doctor who treats or examines an injured worker will state that the exposure to a toxic substance at work was the cause of a particular disease, the case can go forward.

As you can see from this decision, it is very important to enlist the cooperation of the treating doctor in proving a case of occupational disease and death.