Home 9 MAD News 9 It’s No Accident

It’s No Accident

Jul 5, 2021 | MAD News, NYS Workers Compensation

One fateful morning, white smoke appeared over a street in New York City following the explosion of an underground pipe insulated with asbestos, bits of which littered the scene. And where was the claimant? At home, having worked the night shift, and wouldn’t return to the scene for another 36 hours or so. When they eventually turned up for work, they saw notices on some of the buildings regarding an evacuation, and there were folks on the street in hasmat suits engaged in clean-up activities. After all, the news said there was asbestos involved. Claimant got torqued and wanted to speak with HR about what’s being done to protect them, but got no response.

Months pass, and Claimant begins to complain of headaches, difficulty concentrating, and other cognitive dysfunctions. Of course, when they begin to see doctors, they tell every single one they were exposed to asbestos in the aftermath of this explosion. Who cares if the MRI he eventually received was suggestive of a traumatic brain injury? The doctors stick to their theory of toxic encephalopathy due to this asbestos. An IME was secured and, while the most likely diagnosis was still toxic encephalopathy, it was specifically noted that the newspaper articles supplied declared the air around the incident “safe to breathe” before the claimant ever returned to work, so no causal relationship was found. Litigation precipitated, and the only information claimant’s doctors had regarding exposure was that provided by the claimant. One doctor was so bold as to stick with his conclusion “until something’s put in front of him that would controvert it.”

An almost hour and a half long trial followed, wherein the testimony of the claimant and two lay witnesses took place, the latter of which wrecked our timely notice defense to shreds. However, the claimant testified poorly. While they testified they worked the day of the explosion and the 2 days that followed, surrounded by dust that wasn’t properly cleaned-up, their timecard (already in eCase) cried foul; the first time the claimant worked after the explosion was closer to 36 hours than 12. The claimant testified the only information they had regarding their exposure was “probably” the news, conceding they’d never reviewed the environmental report, wherein samples were taken the day after the explosion, before the claimant returned to work, and analysis thereof showed no asbestos. And, if shameless citations to exactly where in the eCase that information could be viewed while we asked the claimant some other questions, like how the onset of his symptoms wasn’t until over a year after the alleged exposure, who’s to say.

Summations followed, with claimant’s attorney alleged they inhaled “something toxic,” and Claimant believed there may have been asbestos in the air, but “something” blanketed the whole area. They continued by noting inhalation issues are slow moving issues before going off on a tangent about how, as we know from 9-11, even just breathing dust is harmful. They’d clearly been caught unprepared by the environmental report. We argued, not only was there proof there was no asbestos in the building when Claimant alleged they were exposed, but there were significant issues with Claimant’s testimony and memory, with proof Claimant made numerous misstatements to their doctors; while the doctors found causal relationship based on those statements, medical reports are only as good as the facts they’re based on, and those not in accordance with the true facts should be set aside.

Ultimately, the WCLJ disallowed the claim, noting that while there’s been notice to the employer, there was no accident here, as the claimant wasn’t exposed to asbestos. As the claimant has to prove all the elements of accident, notice, and causal relationship, and there was no accident here, the claim was disallowed. It was no accident.

Skip to content