                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 4, 2014                   517982
________________________________

In the Matter of the Claim of
   SARAH MANKA,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
GOODYEAR TIRE AND RUBBER
   COMPANY et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 6, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr., Devine and
          Clark, JJ.

                             __________


      Goldberg Segalla, LLP, Buffalo (Gail C. Ford of Vorys,
Sater, Seymour & Pease, LLP, Columbus, Ohio, admitted pro hac
vice), for appellants.

      Lipsitz & Ponterio, LLC, Buffalo (Dennis P. Harlow of
counsel), for Sarah Manka, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________
                               -2-                517982

Lahtinen, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed February 22, 2013, which, among other things, ruled that
the death of claimant's husband was causally related to his
employment.

      David Manka (hereinafter decedent) worked for the employer
from 1987 to 2003 and, during the early years of his employment,
his duties included testing samples of ortho-toluidine, which is
known to cause bladder cancer. Decedent was diagnosed in 2007
with ureteral cancer and died from the disease in 2008.
Claimant, decedent's widow, filed for workers' compensation death
benefits. The employer controverted the claim asserting, among
other things, the absence of a causal link between exposure to
ortho-toluidine and ureteral cancer. The Workers' Compensation
Law Judge credited claimant's expert regarding causation and
found that decedent had died as a result of an occupational
disease. The Workers' Compensation Board affirmed. The employer
and its workers' compensation carrier (hereinafter collectively
referred to as the employer) now appeal.

      The employer argues that, although there are studies
linking ortho-toluidine exposure to bladder cancer, there are no
established links of such exposure to ureteral cancer and, thus,
claimant failed to establish causation. "In a claim for workers'
compensation benefits based upon occupational disease, the
claimant must establish a recognizable link between his or her
condition and a distinctive feature of his or her employment"
(Matter of Ferraina v Ontario Honda, 32 AD3d 643, 644 [2006]
[citations omitted]; accord Matter of Dosztan v Kraft Foods, 113
AD3d 1007, 1008 [2014]).1 "[M]edical opinions regarding a causal
relationship must signify a probability as to the underlying
cause of the claimant's injury which is supported by a rational
basis" (Matter of Satalino v Dan's Supreme Supermarket, 91 AD3d
1019, 1019 [2012] [internal quotation marks and citations
omitted]; see Matter of Bilow v Town of Chateaugay, 151 AD2d 845,


     1
        Here, claimant had to prove that her spouse (decedent)
had the condition and it was related to his employment.
                              -3-                517982

846 [1989]). When considering a claim for benefits, the Board is
"not . . . bound by common law or statutory rules of evidence"
(Workers' Compensation Law § 118; see Matter of Carroll v
Knickerbocker Ice Co., 218 NY 435, 440 [1916]; Matter of Paiz v
Coastal Pipeline Prods. Corp., 9 AD3d 717, 718 [2004]). The
Board "is vested with the discretion to assess the credibility of
medical [proof] and its resolution of such issues is to be
accorded great deference, particularly with respect to issues of
causation" (Matter of Perez v Mondial Tiles, Inc., 104 AD3d 998,
998-999 [2013] [internal quotation marks and citations omitted]).

      Claimant's expert proof included reports by Steven
Markowitz, an occupational and environmental physician, who
conducted a study of employees who worked at the facility where
decedent was exposed to ortho-toluidine and found a statistically
significant link between such exposure and bladder cancer.
Although he acknowledged a lack of studies directly concluding
that ortho-toluidine causes ureteral cancer, he explained that
ureteral cancer is difficult to study because it is very rare.
He pointed to scientific literature concluding that the suspected
occupational causes of ureteral cancer were similar to the causes
established for bladder cancer. After noting that decedent did
not smoke or have any other known risk factor for ureteral
cancer, he related that decedent was definitely exposed to ortho-
toluidine, ortho-toluidine is a human bladder carcinogen, ureters
have the same type of cells as the bladder, ureters are directly
connected to the bladder, and urinary carcinogens flow through
the ureters to reach the bladder. Markowitz found the link
between ortho-toluidine exposure and ureteral cancer to be
"highly plausible" and opined to a reasonable degree of certainty
that decedent's cancer stemmed from such exposure. While the
employer's experts disagreed with Markowitz and a different
conclusion by the Board would have been reasonable, substantial
evidence nonetheless supports the Board's determination.

     McCarthy, Egan Jr., Devine and Clark, JJ., concur.
                        -4-                  517982

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
