                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 6, 2016                    522128
________________________________

In the Matter of the Claim of
   BRUNO DONATO,
                    Appellant,
      v

TACONIC CORRECTIONAL FACILITY                MEMORANDUM AND ORDER
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    September 14, 2016

Before:    McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

                              __________


      Law Office of Joseph A. Romano, New York City (Joseph A.
Romano of counsel), for appellant.

      William O'Brien, State Insurance Fund, Melville (Peter
Lampasona of counsel), for Taconic Correctional Facility and
another, respondents.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed January 27, 2015, which ruled that claimant did not sustain
a causally related injury and denied his claim for workers'
compensation benefits.

      In July 2013, claimant, a correction officer, was diagnosed
with acute bronchitis and reactive airway disease secondary to an
infection and, as a result, was out of work from July 29, 2013
                              -2-                522128

through September 16, 2013. He filed a claim for workers'
compensation benefits asserting that his diagnosis was the result
of his exposure to bacteria while transporting a prisoner aboard
a commercial flight. Following a hearing, a Workers'
Compensation Law Judge found that claimant established a causal
relationship between his diagnosis and his employment and awarded
benefits for the period of time that he was out of work. Upon
review, the Workers' Compensation Board reversed, finding that
the medical evidence submitted by claimant was insufficient to
support an award of benefits. Claimant appeals and we affirm.

      Initially, we need not consider the applicability of
Workers' Compensation Law § 21 inasmuch as the determination as
to causal relationship, or the lack thereof, in this matter was
not based upon the presumption contained therein but, instead,
upon the medical evidence and testimony adduced as part of the
underlying hearing (see Matter of Hartigan v Albany County
Sheriff's Dept., 140 AD3d 1258, 1259 [2016]; Matter of Roberts v
Waldbaum's, 98 AD3d 1211, 1211 [2012]). Turning to the merits,
it was claimant's burden to establish a causal relationship
between his pulmonary injury and his workplace activities (see
Matter of Hartigan v Albany County Sheriff's, 140 AD3d at 1259;
Matter of Dizenzo v Henderson & Johnson, 114 AD3d 1014, 1014
[2014]). Where, as here, "medical proof is relied upon to
demonstrate the existence of a causal relationship, it must
signify a probability of the underlying cause that is supported
by a rational basis and not be based upon a general expression of
possibility" (Matter of Granville v Town of Hamburg, 136 AD3d
1254, 1255 [2016] [internal quotation marks and citation
omitted]).

      Claimant testified that, one day after transporting a
prisoner aboard a commercial airline flight, he became short of
breath and, over the following two days, the symptoms progressed
to the point where he was having difficulty breathing such that
he checked himself into the hospital. At the hospital, claimant
was diagnosed with acute bronchitis and reactive airway disease
secondary to an infection. He claims that the acute bronchitis
and reactive airway disease was caused by his exposure to
airborne bacteria or viruses on the flight. In support of his
claim, claimant offered the reports of two of his treating
                              -3-                522128

physicians, Avraham Henoch and Reno DiScala. Henoch's report
indicated that claimant was a passenger on an airplane that was
reported to have bad ventilation. However, Henoch offered no
specific opinion as to whether this was the cause of claimant's
acute bronchitis or restrictive airway disease. Further,
although DiScala testified that claimant's diagnosis was the
result of this work-related travel, he based his opinion on his
general assertion that upper respiratory illnesses are commonly
caused by air travel. On cross-examination, however, he
acknowledged that claimant could have contracted the subject
infection anyplace and that, based on the history of air travel
reported by claimant, he made the assumption that claimant
contracted the underlying infection while on the airplane.
Sotirios Kassapidis, a specialist in pulmonary critical care who
examined claimant while he was in the hospital and was provided
with the same medical history, testified that he could not form
any opinion with regard to causality. While the Board can
certainly rely upon a medical opinion as to causation even if it
is not absolute or certain (see Matter of Norton v North Syracuse
Cent. School Dist., 59 AD3d 890, 891 [2009]), it is also free to
disregard the medical evidence that it finds unconvincing (see
Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890, 892
[2008]). Where, as here, the only evidence submitted in support
of causal relationship is speculative, it fails to demonstrate a
reasonable probability as to the cause of an injury and, in turn,
falls short of the required degree of medical proof.
Accordingly, we find that the Board's decision denying claimant
benefits was supported by substantial evidence (see Matter of
Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d at 892).

     McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.
                        -4-                  522128

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
