This past December, the Third Department Appellate Division issued an important decision on behalf of workers injured by toxic chemicals.

The Workers’ Compensation Law, enacted in 1914, represents a compromise between the interests of employers and employees.  It protects businesses by forbidding employees from suing their employers for work-related injuries under almost all circumstances.  It protects workers by setting up a streamlined claims process, which imposes a lower burden of proof than a traditional suit in state court and costs less to prosecute.

The case was filed in the matter of a former employee of the Goodyear Tire & Rubber Company located in Niagara Falls. Lipsitz, Ponterio & Comerford represented the widow of a chemical lab technician who had been exposed to an unusual carcinogen called ortho-toluidine. This chemical is absorbed through the skin, collects in the kidneys and passes from the bladder.  Workers who are exposed to ortho-toluidine may develop bladder cancer as a result.

The claimant’s late husband developed an extremely rare cancer of the ureter, the tube that connects the kidney to the bladder.  In an action for workers’ compensation benefits, Lipsitz, Ponterio & Comerford showed that ortho-toluidine passed through the decedent’s ureter and that the ureter was lined with exactly the same kind of cells as the bladder. The Workers’ Compensation Board awarded the chemical lab technician’s widow lifetime survivor’s benefits.

The decedent’s employer appealed the decision, arguing that the Compensation Board should have applied a tougher standard of proof.  If the appeals court had agreed with the employer, the effect would have made it increasingly difficult and expensive to hold companies responsible when their employees develop rare occupational diseases. The court agreed that it would be against the purpose of the Workers’ Compensation Law to change the standard of proof and upheld the widow’s award.

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