Handling the Occupational Disease Case

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August 31, 2018
Author: Ronald S. Einziger, Esq.
Organization: Weiss, Wexler & Wornow, P.C.

In order to begin our discussion of occupational diseases under the Workers’ Compensation Law, we have to understand what it is and what it isn’t. What is an Occupational Disease? How does it differ from an accident or a repetitive trauma injury.

The Workers Compensation Law, Section 39, defines occupational disease as one due to the nature of the employment. Section 3, subdivision 2 helpfully sets forth a list consisting of thirty separate occupational diseases, beginning with anthrax, continuing on through silicosis and other dust diseases in paragraph 29, and then adding paragraph 30, any and all occupational diseases. Paragraphs 1 through 28 may be safely ignored. The only ones that we need to be concerned with are paragraphs 29 and 30.

The courts have consistently defined occupational disease as a disease caused by the nature of the employment, not simply a disease contracted in the employment. It is not something that you get simply because you caught a cold from your cubicle mate, or even an illness contracted because your co-workers are chain smokers and you have been exposed to environmental smoke. It is possible, at least in some cases, that such conditions may be established as accidental, rather than as occupational injuries. (Johannesen v. New York City Dept. of Housing Preservation and Development, 84 NY 2d 129, 615 NYS 2d 336). The disease has to be the result of a unique feature of the employment. The claimant must \"establish a ‘recognizable link’ between his condition and a distinctive feature of his Occupation\" (Matter of Bates v Marine Midland Bank, 256 AD2d 948, 948). This principal was recently affirmed in Engler v. UPS, 2003, 1 AD3rd 854, 767 NYS2d 496. “Absent any link between claimant's condition and a distinctive feature of the job itself, as opposed to the vehicle out of which he worked or the places to which he made deliveries, we find that substantial evidence supporting a case for occupational disease was not established.” Nevertheless in Engler, the court left open an escape hatch for the claimant, remitting the case to the Board to consider whether the claimant’s injuries might be considered to be an accident. Therefore, even though the claimant could not file an occupational disease claim, the Board may still let him in the door by filing a claim for the same condition as an accident.

Conversely in Aldrich v. St. John’s Hospital 305 AD 2d 908, the court upheld an occupational disease claim by a nurse suffering from a bone spur in the right heel resulting from the fact that she did a great deal of walking on the job. The court noted that inasmuch as the evidence establishes that repetitive walking to care for patients was a distinct feature of claimant's job and the medical proof substantiates the necessary causal link, substantial evidence supports the Board's finding that claimant suffered a compensable occupational disease. Therefore, in order to establish a claim for an occupational disease, a claimant must establish that the condition is not only caused by the employment, but by a distinctive feature of the employment. As we can see from the Aldrich case it does not need to be some element found only in very unique employments, such as exposure to asbestos or silica dust, but only something that is a distinctive feature of the job, such as a nurse who has to do a great deal of walking, certainly an activity not limited to those in the nursing profession.

In a 2004 case, Mellis v. NYS Department of Corrections, 9 AD 3rd 766, 779 NYS 2d 857, the Court reiterated the recognizable link doctrine, disallowing a claim by a corrections officer who was found to have contracted hepatitis C while being treated for a lacerated finger after an altercation with an inmate. The court held that there was no recognizable link between the claimant’s employment as a corrections officer and the contraction of the hepatitis C. Presumably the claimant could have recovered if he could have proved that the condition had been contracted as a result of the altercation, in which case it would have been deemed to be an accident. In another case, Palmer v. SUNY Upstate Medical University, 14 AD 3d 737, the court ruled in favor of the claimant, an orthopedic hand surgeon at SUNY Upstate Medical University. The claimant allegedly developed cervical radiculopathy and degenerative disc disease as a result of the strain of performing orthopedic surgery.

Among other defenses, the carrier argued that there is no recognizable link between his condition and a distinctive feature of his employment. The court however cited the testimony of the claimant’s own orthopedic surgeon, that the specific inciting factors were the head position required during hand surgery and the use of magnification which caused extra strain on the claimant’s neck and shoulder region. The court stated that while the hazard faced by the claimant must distinguish it from the usual run of occupations and be in excess of the hazard attending employment in general; it did not require that the characteristic of the employment be generally recognized as inherently dangerous.

Trying to reconcile these two holdings, one can say that while there must be a recognizable link between the hazard and the employment, but that hazard need not be one that is generally recognized as inherently hazardous.

In Martin v. Fulton City School District, 300 AD 2d 901 the Appellate Division upheld the Board’s determination disallowing an occupational disease claim filed by a teacher who complained of various symptoms after exposure to poor air quality in the poorly ventilated school building where she worked. The court was in agreement with the Board's ruling that the circumstances presented here do not support a finding of \"occupational disease\" in that claimant's disability did not arise from \"some distinctive feature of her employment\" as a teacher (Matter of Bryant v City of New York, 252 AD2d 777, lv denied 92 NY2d 813), but was instead the result of \"a specific condition peculiar to [her] place of work\". Again, the test of an occupational disease is whether the condition is the result of the nature of the employment itself, not of the particular location of the employment. Yet again, the AD left the claimant an escape hatch remitting the case to the Board to consider whether the claim may be deemed to be an accident rather than an occupational disease. To similar effect is Morgan v. Olean City School District, 292 AD 2d 694.

Repetitive trauma vs. occupational disease:
Repetitive trauma falls into something of a gray area between occupational disease and accident. Typically, it involves a worker performing some sort of repetitive activity, i.e. typing, heavy lifting, or something of the sort, and the resulting overuse injury fits neither the definition of occupational disease nor does it fit the definition of accident, which requires suddenness of an event either in terms of cause or effect. Example, someone lifts a heavy object and suddenly feel pain in his back. Clearly an accident. Someone bends and lifts over a period of time over months or years and gradually develops back pain. While the carrier will typically argue that this is the result of the ordinary wear and tear of life and therefore not compensable, the Board had developed the concept of repetitive trauma as a sort of catch all for cases that do not fit neatly into either category.

In Newton v. Sears Roebuck & Co., 293 AD2d 862, the Appellate Division upheld the Board’s determination disallowing the claim. While they affirmed the principal that a compensable accidental injury may result either from a single catastrophic event or develop gradually over a reasonably definite period of time… it must first be demonstrated that a specific aspect of the claimant’s workplace was a contributing factoring bringing about the injury. The Court affirmed the Board’s determination that the claimant’s knee condition was not caused by any distinctive feature or repetitive movement at work and as such the claimant suffered neither an occupational disease or accidental injury at work. Essentially the Court affirmed the Board’s crediting of the opinion of the carrier’s IME over that of the claimant’s doctor. This actually was based on the substantial evidence rule and did not break any new ground regarding occupational disease itself. The bottom line of this aspect of the discussion is that when a claimant has a condition which he feels to be job related, but which he is unable to assign to a single catastrophic event, he can file the claim either as an occupational disease or and accident. If unsuccessful one way, he may well be successful on the other theory.

Another case, Engler v. United Parcel Service, 16 AD 3d 969, the claimant initially made a claim for interstitial pulmonary fibrosis, which was upheld by the board, but reversed by the Appellate Division because the lung condition was not assignable to a distinctive feature of the claimant’s job, but to the specific environment and therefore did not qualify as an occupational disease. The court remanded the case to the Board, which then established the same condition as an accidental injury, arising from exposure to airborne irritants in the course of employment. The carrier appealed and the court affirmed, establishing as an accident the same condition that it had previously ruled out an occupational disease. This case has the distinction of being cited twice as precedent in the same presentation. Mr. Engler must be very proud.

This is a case that I handled years ago, unfortunately on the losing side. In the case of Lopez v. New York City Housing Authority, 419 NYS 2d 244, the claimant initially filed a claim for an accidental hernia, which was disallowed under Section 28, for being filed more than two years after the date of accident. The same day the claimant re-filed his claim as an occupational disease. The carrier raised the issue that the disallowance of the claim was res judicata. The Court held that the Board had broad powers under Section 123 and that it could modify the decision so as to reach a different result on the same set of facts. They reached this conclusion despite the fact that there was clear evidence that the hernia was accidental in nature and could hardly have been unnoticed, having been described by one doctor as the size of a basketball, and another as the largest hernia he had ever seen. Therefore a case may sometimes be fit into one category, even when it does not fit into the other.

In Neville v. Magazine Distributors, Inc. the claimant initially made a claim for membranous neuropathy as an occupational disease. However during the course of the litigation the claimant's attorney changed the claim, conceding that the claim was one for an accident, not an occupational disease. He also conceded that the claim was filed more than two years after the date of accident, but argued that the carrier had waived the Section 28 defense by failing to raise it at the first hearing. However the court held that by raising all C7 issues the carrier had preserved the defense by raising \"all...issues\" from the C7 which included a reference to Section 28.

In the past couple of couple of years the Board has given preference to designating repetitive stress conditions as accidents rather than as occupational diseases, where the facts could point either way. The reason is avoid Section 44 apportionment claims, where the liable carrier tries to apportion its liability among all of the the claimant's prior employers. This generally leads to a lot of extra litigation, with crowded hearing rooms and not much being accomplished. More about that later.

Date of Disablement
This is a very important concept, because it will not only determine when the claimant becomes entitled to benefits from an occupational disease, but will also determine whether the claim is time barred and, from the point of view of the carriers’ attorney, which employer and which carrier will ultimately be held liable. The Law, section 38 of the WCL, states that the date of disablement is to be treated as the date of accident, so in most occupational disease cases, other than pneumoconiosis and hearing loss cases, the date that we will be concerned with is the date of disablement.

How does the Board determine the date of disablement? The one hard and fast rule is that there are no hard and fast rules. The date of disablement is what the Board says it is. The Board can choose any of a number of relevant dates, including the date the claimant first saw a doctor for his condition, the date the doctor first gave him the diagnosis and told him that the condition was work related, the date the claimant stated losing time from work, or perhaps some other dates relevant to the development of the claim. Increasingly in practice, over the past few years, the Board has chosen the date that the claimant is first informed by his doctor that his condition is work related. However it is not bound to do so, and where it sees fit, i.e. to avoid a claim being time barred it can and will choose another date. Carriers will frequently argue that the Board should choose a date that will render a claim untimely, and until recently almost invariably without success.

In the case of Jex v. Albion Correction Facility, 770 NYS 2d 919, the AD affirmed the Board’s disallowance for late filing because the claimant did not file her claim within two years of the date that she knew or should have known that the disease was due to the employment. This represents a departure from the Board’s previous practice of attempting if at all possible, to fix the date of disablement within two years of the filing of the claim, so as to avoid any Section 28 problems.

In Pawluk v. Ford Motor Company, the court upheld the Board’s disallowance of a claim for carpal tunnel syndrome both under Section 28 and also denied a claim for a neck injury since the claimant did not give the employer notice within 30 days. Although the court not specifically say so in its decision, the neck claim was probably an accident since the it is difficult to apply the thirty day notice rule to an occupational disease.

In Barcomb v. Delphi Automotive, 42 AD 3d 809, the claimant filed a claim for an allergic reaction to an airborne allergen, which he was not able to identify. The Board disallowed the claim because the claimant was unable to identify the specific allergen in the workplace that caused his symptoms. The Court reversed, holding that the mere inability to identify the allergen was not fatal to the claim. The court will look to overall causation, of which identification of the allergen is just one factor.

In the ordinary occupational disease case the liable carrier is the one that covers the liable employer on the date of disablement, under Section 44.

Conversely, under Section 44a of the WCL in a silicosis or other dust disease case, the liable employer and carrier is not the one who is liable on the date of disablement, but the one who is liable on the date of last injurious exposure. Hinton v. Acme Steel & Malleable Iron Works, 343 AD 2d 993, 663 NYS2d 693.

Section 3, subdivision 2, paragraph 29 refers to silicosis and other dust diseases, which includes asbestosis and other pneumoconiosis diseases. Malott v. St. Joe’s Lead, 245 AD 2d, 907, 666 NYS2d 849. It does not include such other diseases as asbestos related pleural disease, chronic obstructive pulmonary disease, chronic irritative bronchitis, lung cancer or other diseases that may be caused by exposure to either asbestos or other harmful dusts. Such diseases may of course be established as occupational diseases but the rules concerning liability are governed by section 44, not 44a.

Such pneumoconiosis diseases are also treated differently because the carrier is, or may be, entitled to relief under section 15-8ee, giving it the right to recover from the special funds after the first 260 weeks of benefits. In the 2007 amendments to the Workers Compensation Law one of the major changes was the elimination of Section 15-8, which provided for Special Funds relief in second injury cases, under Section 15-8d, and in dust disease pneumoconiosis cases under Section 15-8ee. In previous years programs I discussed that aspect of the law at length. I will still address it in this year's presentation insofar as it will still exist in cases where the date of disablement is prior to 7/1/08. This will add one more issue to the litigation, with the carrier trying to set an earlier date of disablement in order to obtain 15-8ee relief.

In addition the carrier who is liable in an asbestosis case may also be entitled to a lien and credit under section 29 for the proceeds of the claimants’ third party action against the manufacturers of asbestos. Thus between the third party aspects of the claim and the special funds relief under 15-8ee, the carrier’s liability may be substantially or even entirely eliminated.

Special Funds will be eventually eliminated under the new amendments to the Workers' Compensation Law, but relief is still available to carriers on older cases, where the disablement occurs prior to the effective date of the new statute. Or not, depending on how the courts interpret the new statute. It will definitely be available on cases already filed.

How does this work in practice?
? Defining Last injurious exposure
? Determining the Diagnosis
? Locating the employer at the time of last injurious exposure
? Locating the carrier for employer at the time of the last injurious exposure

Determining last injurious exposure. Briefly, this may be defined as the last exposure to the offending substance, no matter how brief or limited. Although arguments have been made by attorneys for employers where there was such very limited exposure that it was in fact not injurious, such arguments have generally not been successful. In Cammarata v. Caldwell & Cook, 19 AD 3d 884, the court rejected an argument that an employer and its carrier are not liable because the date of disablement occurred after the employer went out of business.. The court cited Section 44 in applying the last injurious exposure rule for a disease such as mesothelioma, which is not a pneumoconiosis, even though it is also caused by asbestos exposure .

Determining the diagnosis.
This is a matter for medical testimony and is an exercise of the Board's fact-finding powers. Generally the claimant will open the case and submit a medical report setting forth a history of occupational exposure to industrial dusts including silica and asbestos and reaching a diagnosis, and expressing an opinion that the diagnosis is causally related to the claimant’s employment as a tunnel worker, sandhog, construction worker, etc. Once the board makes a finding that this report constitutes prima facie medical evidence the judge will customarily direct the carrier to produce its own medical report, typically referred to an Independent Medical Examination or IME report. If the two doctors are in agreement, then the judge and the board will proceed from there, treating the case as either a pneumoconiosis or a non pneumoconiosis case. Typically that does not happen. The doctors will disagree either in regard to diagnosis, causal relationship or disability. Frequently the Special Funds will also want to produce its own IME, since they may disagree with the carrier’s IME who finds asbestosis or silicosis. Now faced with two or three conflicting medical opinions, the judge will then schedule testimony, generally by deposition.

As an aside, the Board’s recent practice regarding the setting of witnesses flies in the face of 1000 years of Anglo Saxon jurisprudence. Neither side has the right to call its own witness. Each side has the right only to ask to cross-examine medical witnesses from the other side. Essentially, I choose your witnesses and you choose mine. Is there any other jurisdiction that anyone here can think of where this occurs? Imagine what Law and Order could do with a situation like this. I also have problems with witnesses understanding the gravity of taking an oath and appreciating the need for honesty on the stand when they are quite literally phoning it in.

In general the Board has been redefining the rules of procedure to the point where I think they would be almost unrecognizable as anything resembling the rules in any other forum. Don't even get me started on the more recent innovations, such as the “Rocket Docket”, the 2012 permanency guidelines, the permanency calendars, or the FROI/SROI forms. In any event, after hearing the testimony, the judge will then make a decision, or the parties can reach a settlement among themselves.

Identifying the liable employer.
Even before we take the medical testimony, we must however determine the employers and carriers potentially liable. Given the likelihood that the liable employer and carrier will be either the one on the date of last injurious exposure or the date of disablement, we have to first determine their identities. One may assume that determining the name of the potential defendant may be the easiest part of this whole process. After all, the claimant must know whom he worked for. Such an assumption would be wrong. Why?

First of all the claimant may not remember. By the time he files his claim he may be years or even decades removed from the last exposure to asbestos. Typically the claimant is a union construction worker who has gone through numerous employers in his career, and the claims are usually not made until retirement. While union records and Social Security records are available to help the claimant refresh his memory, they are not always that precise. Social Security records show only the quarters that the claimant received pay, not necessarily the precise dates of employment or exposure. It is not infrequent that a claim may be filed against one employer, and then the proceedings are halted and restarted when the claimant suddenly remembers a later exposure. It must be kept in mind that the use of asbestos in new construction was banned in 1975, although workers continued to be exposed when doing renovations

Identifying the liable carrier.
Assuming that the employer is identified, the task now becomes that of identifying the carrier for that employer, not just on the date of the last injurious exposure but also on the anticipated date of disablement. As we have seen the board may set any of a number of dates as that but typically it is the date that the claimant is first informed by his doctor that his condition is occupationally related. The Board will then place on notice at least two carriers. However, typically the claimed date, at least for the last injurious exposure will go back years or decades and the Board may or may not place on notice the correct carrier. The Board has a database listing carriers and employers going back to about 1986. Its records before that were not too complete. The WCB will frequently determine the carrier by going through its index cards of other claimants working for the employer doing the same time period and seeing who that carrier was. The Board will also have to place on notice the carrier for that employer on the date of disablement, generally a more recent date. If the case is established for pneumoconiosis, the carrier on the date of last injurious exposure will be liable under 44a. If it is established for a nonpneumoconiosis disease, the carrier on the date of disablement will be liable under Section 44.

Once placed on notice, the carrier’s representative will usually request an opportunity to investigate the coverage issue. Again this will be problematic because the policies in question may be very old and if the carrier’s records may be difficult to access or even have been lost or destroyed. Yet let’s assume that the carrier’s investigation discloses that it did indeed have a policy in existence on the date in question, either last injurious exposure or date of disablement. Does that mean that the carrier’s attorney is going to appear at the next hearing and concede coverage? No. Why not?

Construction companies, especially the larger ones frequently have many policies in existence of any given date. They may have one overall policy and several others covering individual locations. They may be involved in joint ventures with other companies and take out separate policies covering those, or they may have coverage under wrap up or wrap around policies that large contractors may use to cover all workers at a single location or locations, such as the NYC School Construction Authority, the MTA or the Port Authority. Therefore we need to know not only the date of last injurious exposure, but also its location.

The Board’s database only lists the policies in existence for an employer on any given date, and it does not distinguish between general and wrap up policies. Also it frequently picks up when a policy becomes effective but does not pick up when a policy lapses or is canceled. Whether this is the fault of the Board or of the carriers that fail to properly adhere to the proper cancellation procedures I do not know. Perhaps it’s a little of both. This appears to have improved a bit in the last few years.

For more recent policies the Board now has an on line database, were anyone can check the coverage for any employer. This is at: http://www.wcb.state.ny.us/content/ebiz/icempcovsearch/icempcovsearch_overview.jsp

The result of this is that you end up with a hearing room with one claimant, his attorney and attorneys for numerous carriers all of whom are saying it’s not me. Even Special Funds joined in this pursuit, arguing that in so called “hybrid” cases, where the claimant has both pneumoconiosis and a non-pneumoconiosis disease that the claimant should be required to file two separate claims, one for each condition. The Special Funds argument was essentially that where one condition would subject them to liability and one did not, there should be an apportionment between them subjecting them to only partial liability. The court rejected this argument, holding that in such hybrid cases the pneumonconiosis takes precedence and the claim should be established under paragraph 29, and all of the resulting statutory provisions. Fama v. P & M Sorbara, 29 AD 3d 170.

In McDonald v. Water Tunnel Contractors, 51 A.D.3d 1151 (2008), 858 N.Y.S.2d 424, the court found that Special Funds did have standing to challenge a determination that the claimant was disabled by silicosis, where the case had been established for both silicosis and chronic obstructive pulmonary disease. The court held that the record did not support a finding that the silicosis caused a disability. Therefore, the court, despite the fact that the case has been established for both silicosis and and COPD, and classified as having a PPD, found that the record lacked evidence that the claimant was disabled by the silicosis and that therefore the carrier was not entitled to relief under 15-8ee. The court restored the case to the calendar for a determination as to whether the claimant suffered from some other qualifying disease which would entitle the carrier to such relief. It remains to be seen if they will find something, though in practical terms that would seem to be asbestosis.

Resolving the issues.
The way to resolve this is involves first and foremost taking the testimony of the claimant to get an occupational history of exposure to asbestos, silica and generalized dusts. The testimony will also involve asking him the last place that he recalls being exposed to asbestos and other dusts. Frequently the last locations will be the same, but most often they will not be. The claimant’s direct testimony generally will go over his work history both before and after the banning of asbestos in new construction. The typical testimony is that the claimant was exposed to asbestos and other construction dusts in the course of both new construction and renovations up about 1975 when the use of asbestos was banned. After 1975, he was exposed to asbestos in renovation jobs. His exposure to other construction dusts continued until he retired. The last asbestos exposure may or may not coincide with the last exposure to other dusts. What we see frequently is that there will be one employer where the claimant had his last exposure to asbestos, and another one where he had his last exposure to other dusts and to silica. Therefore, you have two separate claims, one for asbestos and one for silica and general construction dusts. Direct examination will also cover when the claimant first felt symptoms relating to the claimed disease, and whether the symptoms led to the claimant’s work stoppage. Finally, and this is very important for statute of limitations and date of disablement purposes, the direct examination will go into the issue of when the claimant became aware that his condition was work related. Almost invariably, he will answer that his was first informed of that fact by the doctor whose report has served has the prima facie medical evidence that is the basis of the claim. (As a long time carrier’s attorney I permit my self some skepticism at the veracity of this answer.) The notification of the work relatedness of the claimant’s symptoms is usually followed shortly by the filing of the claim.

Attorneys representing carriers who have wrap up or site-specific policies will also get an opportunity to cross-examine the claimant about the location and the date of last injurious exposure. In addition carriers attorneys will question the claimant about his smoking habits, with the intent of arguing that his respiratory and pulmonary problems are the result of his smoking history, rather than the result of the work related dust exposure. One claimant told a rather colorful story about a history stating at about the age of 8, sneaking smokes behind his parents’ house with his friends. They will also question the claimant regarding any possible later exposure to injurious dust, seeking to shift the responsibility to some other employer and carrier. It should be noted that only exposures within New York State count. It is very possible that a claimant could testify that he moved to New Jersey, Florida, Arizona or elsewhere, after the last New York injurious exposure, spent years being exposed to asbestos every day and it will have not the slightest effect on the case. Only New York State exposure matters.

Carriers will also question the claimant about when he first had knowledge of the work relatedness of the problems. Typically a claimant will testify that he stopped working because the work became too difficult for him, which he became short of breath with minimal effort, all of which he attributed solely to the aging process. One of my favorite questions is to point out to the claimant that he was suffering from symptoms serious enough to prevent him from working, causing him to retire from his job, and ask why didn’t he see a doctor. The typical answer is that he thought it was just aging, so there was nothing anyone could do. This answer begs the question of why he didn’t see a doctor for symptomatic relief, even if we accept the previous answer. Sometimes the answer will be that he saw his family doctor, but he didn’t tell him of the employment relationship. The first knowledge of the causal relationship is, as noted earlier, when the pulmonary specialist whose report begins the claim gives him the news. Again as a carrier’s attorney, I betray my biases when I find this answer to be somewhat doubtful, given the widespread knowledge of the harmful effects of asbestos, both in the lay and medical communities.

The reason that this answer is important is the statute of limitations. Section 28 requires that the claim be filed within two years of the date that the claimant knew or should have known of the work relatedness of the condition. Knowledge has been defined as medical knowledge, being informed by a doctor. Bongiorno v. City of New York, 250 AD 2d 1001, 673 NYS 2d 250. Merely reaching that conclusion independently is insufficient to start the statute of limitations running. That’s why a claimant will always try to date his knowledge of work relatedness to the information imparted by his doctor immediately preceding the filling of the claim, and the carrier will attempt to move it as far into the past as possible.

As a reminder to any carrier’s representative, it is absolutely vital to raise the issue of Section 28 at the first hearing at which all parties are present or it can be deemed to be waived. Since you’re never sure whether all parties are present at any given hearing as a matter of procedure it’s best and safest to raise that issue at each and every hearing. Make sure that you’re on the record when you’re raising the issue. The carrier will also inquire of the claimant regarding the reason he stopped working, whether it was in fact the reason he testified to. The reason for this is the concept of voluntary removal from the labor market, one of the most controversial matters in the compensation system in the recent years. I’ll discuss this later on at some greater length, but at this point in the presentation, I will just note that this concept has been around for years, but has been used by carriers to much greater effect in the past five to ten years or so. One recent case, which I will discuss later, may now represent some backtracking by the courts, the pendulum swinging the other way.

Essentially this is the argument presented by the carrier that the claimant is not working for reasons other than the compensable disability. While this defense is not unique to occupational disease cases, it is frequently employed in such cases because the claims are not brought until several years after the claimant’s retirement.

The defense will also question the claimant as to whether he applied for unemployment insurance after he stopped working, since receipt of such benefits is evidence of an ability to work, and an indication that the claimant’s work stoppage was due to a layoff, common in the construction industry rather than to inability to handle the job.

The defense will also want to know about any third party recoveries the claimant may have received as a result of his participation in the class actions against the manufacturers of asbestos. The carrier will have the right to take credit against any awards for any money the claimant has received in the third party. If the credit is large enough the liable carrier may actually pay little or nothing between that, which would cover the first five years, and then Special Funds would take over liability after that under 15-8ee. This provision comes into effect when the case is established for pneumoconiosis, such as asbestosis or silicosis under Section 3, subdivision 2, paragraph 29.

A carrier’s attorney who sees that the case is headed towards establishment against his client will try to steer the finding towards asbestosis, rather than a related condition such as asbestos related pleural disease, since this diagnosis will greatly limit his client’s liability. Asbestos related pleural disease, while also a lung condition related to asbestos exposure, is not a “dust disease” or pneumoconiosis, and therefore does not fall into paragraph 29 or 15-8ee.

Any and all carriers present will have the opportunity to present a lay witness from the employers they represent. This is infrequently done in practice. The witnesses would be brought in to testify regarding the extent to which the claimant may have been exposed to asbestos in the employments he alleges. As a practical matter it may be difficult to find such a witness for a number of reasons. First if the last injurious exposure is years or decades earlier the witnesses may be dead or impossible to find. Construction companies have constantly changing payrolls with most field employees remaining so only as long as the particular construction project lasts. When they move on the employers lose track of them. Also, when the coverage is under a wrap up or site-specific policy, then the carrier’s contacts could be with the general contractor or primary policyholder, rather than with the claimant’s actual employer.

If a witness does come in he may deny that the claimant was exposed to asbestos in his employ. He may testify that the claimant was working on new construction, which no longer uses asbestos, or if working on a renovation, that the asbestos was already abated by the time the claimant was brought in to work on the project. This is a matter of credibility, which will have to be decided by the judge. After the lay testimony has been taken it may be possible to reduce the number of carriers in the room if there is a consensus regarding the date and location of last injurious exposure. While those attorneys who feel that the testimony does not implicate their clients may make motions for dismissal, the judge will frequently decline to let anyone out pending a final determination on the issue of coverage. It never hurts to ask.

At this point we generally move on to medical testimony. There may be two or even three doctors testifying: the claimant’s physician, the carrier’s IME and possibly a Special Funds IME. While there may still be multiple carriers on notice, usually only one of them will produce an IME and there others will adopt that report as their own. If either the claimant’s or the carrier’s doctor diagnoses a dust disease, which will result in Special Funds liability under 15-8ee, then Special Fund may want to produce their own IME to comment on diagnosis.

The doctors will have to testify on numerous issues, including diagnosis, causal relationship and disability. Typically the claimant’s doctor will diagnose numerous conditions, including asbestosis, asbestos related pleural disease, silicosis, chronic irritative bronchitis and COPD. He will find a total disability and attribute causal relationship to the workplace exposure to dusts including, asbestos, silica, and general construction dusts. Total disability in workers compensation terms, means an inability to perform any gainful employment whatsoever, no matter how light or sedentary.

The IMEs will comment on the same issues usually reaching different conclusions. Regarding causal relationship, they will frequently concede causal relationship. If the doctor makes a diagnosis of an asbestos related condition, or of another condition related to exposure to construction dusts, it is difficult to deny causal relationship when there s a history of many years of asbestos or dust exposure. The real fights come in the area of diagnosis and degree of disability. The diagnosis battle is between the carriers and the Special Funds. A carrier who covers an employer on the date of disablement, but not on the date of last injurious exposure will be pressing for a diagnosis of a pneumoconiosis, since that would relieve his client of liability. A carrier who covers on the date of last injurious exposure will push for a finding of a non-pneumoconiosis disease, since that would determine the liability by the date of disablement, thus relieving his client of liability.

The issue of the degree of disability will be the main point of contention between the claimant’s attorney and the different carriers. The claimant’s doctor will frequently find, as previously noted, a total disability while the carriers’ IME may find no disability or a partial disability. Direct and cross-examination will address these issues. The parties will frequently attempt to attack the opposing experts’ credentials to interpret X-rays, an important diagnostic tool in pulmonary cases. One of the issues will be the doctor’s status as a B reader, a level of expertise in reading of X-rays. Another will be the degree to which smoking may have contributed to the disability. Statistics show that smokers who are exposed to asbestos are at far higher risk for asbestos related disease than are non-smokers. In Webb v. Cooper Crouse Hinds Co, 62 AD 3d 51, the court refused to apportion an award in a death case even when the award in the underlying disability case had been apportioned between compensable and non compensable conditions. The court held that death benefits are payable even if the death is due only in part to the employment, and there will be no apportionment.

The parties will also address the claimant’s ability to work in other fields, outside of the one, usually construction, where he contracted the disease. The carriers will be attempting to show that the claimant is only partially disabled, and therefore able to work elsewhere.

Voluntary Withdrawal
The first year I did this presentation this section was much smaller. In fact I was going to say carriers always raise voluntary withdrawal but they never win. That may have been true years ago but it isn't now. In fact that issue has become one of the most litigated of all. The carriers attorneys may also raise the issue of voluntary withdrawal form the labor market, an issue I touched on earlier. This is a concept that has been around for many years, but has only in the last five or ten years become widely used as a defense by carriers and self-insured employers.

Briefly, it means this. The claimant isn’t looking for work anyway and therefore is not in the labor market. If that’s the case he’s not entitled to compensation, even if he does have a work related disability. This has become a very controversial defense, since the claimant’s bar deems it a violation of the spirit of the Law.

Carriers have however been using it to great effect in the past few years. As it applies to an occupational disease case, the carrier’s argument goes something like this. The claimant has already retired, and been collecting a pension and Social Security benefits. Five, six, or seven years later, he discovers he has asbestosis, silicosis, or another occupational disease, and files his claim. The carrier asks why he’s entitled to compensation. After all he wasn’t looking for work. His retirement application was filed without mentioning his disability and he may have opted for a regular rather that a disability retirement, assuming that such an option exists. Several cases including Gotthardt v. Aide Inc. Design Studios, 291 AD2d 587,588, illustrates the point. Gotthardt has a fairly typical set of facts. The claimant, a heavy equipment operator for a number of employers last worked in 1993, working for this last employer just two days. After the job ended, he collected unemployment insurance, and applied for both Social Security and union pension benefits, neither of which were based on disability. He filed his compensation claim in 1995, for silicosis. The carrier raised the defense of voluntary withdrawal and the Board ruled to that effect. The claimant appealed. The Court ruled that where a claimant voluntarily withdraws from the labor market, he is not entitled to benefits for occupational disease, but that where the occupational disease contributes to the claimant’s decision to retire, he would be entitled to benefits.

Ultimately it boils down to a factual determination that the Board must make. Of course the courts will not disturb the Board’s factual determination as long as there is substantial evidence to sustain it, even if there could have been a different conclusion based on the same set of facts.

The court reached a similar result in Milby v. Consolidated Edison 304 AD 2d 946. The court held that “claimant was not advised to cease working altogether and did not seek an alternative position with his employer or elsewhere following his retirement, nevertheless found that claimant's disability was not a factor in his decision to retire. Notably, claimant had over 35 years of service when he retired, did not allege any significant loss of time related to his disability, did not apply for disability-related retirement and apparently made no effort to continue his employment in an alternative position which would not expose him to asbestos or other pulmonary offending agents.” Based on these findings the court again upheld the Board’s finding of a voluntary withdrawal. Other recent cases with similar conclusions include Lombardi v. Brooklyn Union Gas Co. 761 NYS 2d 379, and Gennes v. Longwood Central School District, 768 NYS 2d 411. In both of these cases the court upheld the Board’s determination, based on the facts of the case that there was a voluntary removal from the labor market.

Two more recent cases, Trank v. Con Ed, 17 AD3d 801, and Stagnitta v. Con Ed, 24 AD 3d 1099, also upheld board decisions of voluntary withdrawal based on the fact that the claimant worked full time up until his retirement, did not lose any time from work, and did not apply for a disability retirement.

Carriers have also attempted to use this defense, in the case of younger claimants who have not yet retired. In this case the employer may contact a claimant and offer him a job within his physical capacities, at least those found by the carrier’s IME. If the claimant fails to take the job the carrier then raises the issue of voluntary removal, arguing that the claimant failed to take the job within his physical capabilities. The claimant may counter that his own doctor finds him to be totally disabled, unable to participate in any sort of work, or he may testify that the job, at least as initially described really was not available when he contacted the employer. Again this boils down to a factual determination, but under this scenario, the claimant’s side has generally had greater success than with the post-retirement scenario, described above.

For a few years the courts were going back and forth issuing a series a rather inconsistent decisions, like a pendulum swinging back and forth regarding when voluntary withdrawal was a valid defense, and when it wasn't A claimant's attorney would be well advised to seek a finding of involuntary retirement from the board, or to have the carrier agree to such a finding in its settlement negotiations. All of this may become moot in the next few years as the post 3/13/07 accidents start to come up for classification and the duration of the claim for benefits will depend on the percentage of disability found by the board.

The board has issued a set of highly complex and difficult to understand guidelines addressing the issue of evaluating a disability and setting a loss of wage earning capacity. That in and of itself can be the subject of an all day seminar.

A recent major case in the area of voluntary withdrawal, and one which has generated a great deal of controversy is Peck v. James Square Nursing Home,34 AD 3d 1033, 2006. In another swing of the pendulum the court has now swung back hard in the other direction. In that case the court affirmed the Board's finding that the claimant has an obligation to seek work within her medical restrictions, and suspended the claimant's right to compensation pending evidence from the claimant of her job search. The court held that where a claimant has a permanent partial disability but there has been no finding of involuntary retirement, the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. Significant in this decision is that the claimant had already been classified with a permanent partial disability. Despite this the court upheld the Board's decision that the claimant must demonstrate a job search before being entitled to benefits.

In other words, even when a claimant has been classified he must still show that he is in the labor market and that his disability has impaired is ability to find a job.

Two other cases discusse voluntary withdrawal insofar as it relates to occupational disease cases. In Parrelli v. Atlantic Construction, 67 AD 3d 1265, also upheld a similar situation where the claimant retired for unrelated reasons and then claimed compensation, alleging that his established lung condition impaired his post retirement search for employment. The court ruled against him because he did not demonstrate any effort to find work within his limitations.

In Mills v. J.C. Penny, the court reaffirmed the principal that where there is a permanent partial disability, the claimant still has an obligation to look for work within his or her restrictions. However the ultimate decision in most voluntary withdrawal cases boils down to the essential facts of the case, whether the claimant has satisfied the board that he or she has made a genuine search for employment. The court also re-affirmed a prior finding that it had made of voluntary withdrawal based on the claimant's failure to accept an offer from the employer of light duty work.

The Board has attempted to impose some order on this chaos by issuing the American Axle decision, setting forth what a claimant must do in order to demonstrate a continuing attachment to the labor market and thus preserve his eligibility for benefits. Essentially it held that the claimant could demonstrate that by participating in a job search. The Board specifically named participation in State sponsored One Stop Career Centers, participation in VESID, or an independent job search, as evidence of continuing attachment to the labor market.

The Appellate Division in the past couple of years done its best to completely muddy the waters in regard to the voluntary withdrawal and attachment to the labor market issues with its decisions in the Zamora, Funke and Hester decisions. In the case of Zamora v. New York Neurological Associates, 17 N.Y.3d 834, the Court of Appeals settled, at least to an extent, the confusion that the Appellate Division had been causing over the last several years with a series of completely contradictory and irreconcilable decisions, called Funke, Zamora, and Hester. The court had appeared to hold that in order to prove voluntary withdrawal the carrier had to show that the claimant's disability had no role at all in his or her not working. This was essentially impossible to prove.

At this program a few years ago, I essentially threw up my hands since I just could not find any way to reconcile the Appellate Division's rulings in a way that made any sense. However, the Court of Appeals rode to the rescue, pointing out the error in the Appellate Division's analysis.

The correct principle is the former one; the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. If, for example, the Board considers a disability to be one that prevents the claimant from pursuing the trade in which she was engaged at the time of the accident, while allowing her to undertake many other jobs that pay as well, it will likely not make the inference. The Third Department's recent doctrine that the Board must find causation \"effectively created [a] . . . presumption out of an inference\" (Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1201 [3d Dept 2006, Carpinello, J., concurring]; see also 79 AD3d at 1473 [Cardona, P.J., and Garry, J., dissenting]). There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer. Consequently, the Appellate Division's decision below was in error.

It boils down to this: It's a factual determination. What is the reason that the claimant isn't working. Is it the claimant's compensable condition or has he or she decided that he does not want to work, for some other reason. We have to in fact get inside the claimant's head to determine his true motivations. It's not a very easy task, which is probably why the Board and courts have had so much trouble with it. The Board may infer that the joblessness is the result of the injury but it is not required to do so.

Also in a time of high unemployment we are expecting claimants who are at least partially disabled and not all that motivated to compete in a job market where there are millions of motivated and healthy people who can't find jobs.

Claimants are now routinely required to show efforts to find a job within their limitations, unless their own doctor makes a finding of a total disability, and the Board has not made a finding of a partial disability.

Finally after all of these issues are hashed out, the time comes for a decision. At his point the judge may make a ruling, addressing the multiple issues that are been raised, or the parties may reach a settlement, either in terms of an award for lost time or a section 32 settlement, in which the parties agree to pay the claimant a certain amount of money in return for which the claimant agrees to close out his case forever, giving up the right to both indemnity and medical benefits. Of course any party unhappy with the WCLJ’s decision has the right to appeal to the Board. The Board may affirm or reverse the judge’s decision, or it may restore the case to the calendar for such additional evidence that it may deem necessary. The Board has the power to reach its own conclusions of fact, even if they are contrary to the WCLJ’s.

A party unhappy with the Board’s decision has the right to appeal to the Appellate Division, Third Department, but such appeals are far rarer than appeals to the Board level. They are far more expensive and the Court will disturb a decision only when the Board has made an error of law, or when there is no substantial evidence to support the Board’s determination. As we have seen, substantial evidence has been interpreted to mean almost any evidence. The Court will not disturb the Board’s findings of factual determination, even when there could have been a contrary conclusion based on the same set of facts.

Section 44 Apportionment
As we have seen dust disease case are controlled by Section 44-a which imposed 100% of the liability for an occupational disease on the last employer for whom there was an injurious exposure even if the exposure there was relatively minimal. At first glance it hardly seems fair to saddle the last employer with all of the liability, especially if the claimant spent almost all of his working life working for other employers. It would seem much fairer to treat these cases under the same way non dust disease cases are treated under Section 44, which allows the last employer to apportion the liability with the prior employers with whom there has been exposure.

The short answer is no. The last employer rule generally works, because, while it may be unfair in each particular case, it generally evens out over the long run, spreading the risk over the entire industry, and also lays off part of the cost onto the Special Funds. This again has the effect of spreading the risk through the industry, since all carriers contribute to the Special Funds by means of assessments.

In fact it is very rare to successfully apportion liability under section 44 for the simple reason that most construction workers have worked for multiple employers, covered by multiple carriers over their careers. In order to apportion liability the carrier paying would have to determine the identities of all these employers and carriers, going back thirty or forty years. Imagine the difficulties described earlier just finding the employer for the last injurious exposure, and multiply that by numerous employers and carriers going back decades, with the information harder and harder to find as we go further back in time. Just imagine a hearing room with representatives of dozens of carriers packed in and trying to determine the relevant facts and trying to negotiate, or worse try, an apportionment case under 44.

The Appellate Division essentially repealed Section 44 in the case of Walton v. Lin-Dot, 85 A.D.3d 1413 (2011) . In that case the court held that in determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant contracted the disease while employed by that employer. In this case the claimant was asymptomatic and didn't seek medical treatment for his occupational injuries before going to work for his final employer. The carrier's expert witness was unable to state when the claimant contracted the disease or give a rational explanation of how he arrived at his apportionment percentages. So in light of this we no longer have to go back through the claimant's entire career for apportionment. We just have to find the date when the claimant contracted the disease, which chances are will be very recent, going back only to the last employer or maybe to the one before that.

Certainly we're no longer going to have to go back thirty or forty years. Now we can understand why the liable carriers generally do not bother to apportion under Section 44. It’s far easier and more cost effective to try to limit liability in some other way including Section 15-8 ee, to the extent that it's still available, and Section 32.

Also as I mentioned earlier, the Board tries to avoid Section 44 litigation by having the judges designate cases as accidents rather than occupational diseases where possible.

Hearing Loss
The next topic I’d like to cover is occupational loss of hearing. This is covered in Article 3A of the Law, sections 49aa through 49hh. Again, we have to distinguish between occupational and accidental loss of hearing. Accidental would be a loss caused by a single identifiable trauma, such as proximity to a sudden loud explosion, or a gunshot, or possibly a physical trauma, such as the puncturing of an eardrum.

Occupational loss of hearing is caused by exposure to loud noise over an extended period of time, no less than ninety days, according to section 49-ff. Similarly to the kind of occupational disease claim discussed earlier, the claims are usually based on a claim of years of exposure. The typical kind of claim is filed by, as before, construction workers, sandhogs or newspaper pressmen, exposed to noisy printing presses. The rules regarding date of disablement and liable employer are considerably stricter and more thus clearer than in the occupational disease claims under 44 and 44a.

First, the claimant may not even make a claim until he has been removed from noise exposure in the state for at least ninety days. Removal from exposure can be accomplished in one of two ways, according to section 49-bb. The first and simplest: separation from the employment. No job, no noise exposure, and the claim is ripe for filing. The second way is use of “effective ear protection devices provided at the expense of the employer.” This second way, added by statute in 1987, appears a bit naive. It expects the employer, voluntarily to provide the employees at its own expense with ear protection sufficient to block out offending noise, and at the same time open itself up to claims for occupational hearing loss.

Talk about virtue being its own punishment. The amendment has the effect of penalizing the employer for attempting to protect its workers from the effects of harmful noise by providing them with ear protection. Small wonder that removal from noise is almost universally accomplished by removal from the employment. One removed the claimant must wait ninety days before making his claim. That ninetieth day then becomes the date of disablement. Unlike in other occupational disease cases there is no discretion or choice of date. The ninetieth day after separation is the date of disablement and the carrier on the risk on that day is the liable carrier. Therefore if an employer changes coverage between the date of removal and the date of disablement, a carrier may find itself liable for a hearing loss claim even if the claimant never worked for the employer during its period of coverage. Murgalo v. New York Daily News, 57 AD2d, 978, 394 NYS2d 106.

Since it is usually easier to determine the liable carrier we usually get to the trial stage of a hearing loss claim far sooner than we do in other claims. This sort of claim is initiated by the filing of a C-3 claim form, and is usually accompanied by a report form the claimant’s doctor giving a history of exposure to loud noise at work, and, an examination of the claimant’s hearing and a conclusion linking the loss of hearing to the workplace exposure. The carrier will then have the claimant examined by its own IME who will express his opinion on the issues of causal relationship and degree of hearing loss if any. Both medical reports will usually be accompanied by audiograms, which are a graphical representation of the claimant’s ability to hear sound within the range of ordinary conversation.

Direct examination of the claimant will focus on his history of occupational noise exposure. The claimant may testify to having been exposed to noise while working on construction sites or to newspaper printing presses. Surprisingly we see very few claims by rock musicians. Cross examination will center on whether the claimant was exposed to excessive noise outside the job such as in the military or perhaps playing in a rock band or attending rock or heavy metal concerts. Since it is easier to determine the liable carrier and date of disablement is a hearing loss claim, Section 28, the two-year statute of limitations, may become an issue.

Section 28 requires that the claim be made within two years of the claimant knew or should have known that the disease was due to the employment. Section 49-bb gives the claimant 90 days to file after knowledge of the work relationship, even if he files more than two years after the date of disablement. In an ordinary occupational disease claim, this is the date that the claimant was informed by a doctor of that fact.

The case of Depczynski v. Adsco/Farrar & Trefts et al, 84 NY2d 593, 644 NY2d 1314, 620 N.Y.S.2d 758 (1994), sets forth the rules regarding time limits in hearing loss claims. The court held that medical knowledge was not required in order to trigger the statute of limitations. “Where the employee himself attributed a recognized hearing loss to occupational noise exposure, but did not medically confirm that belief for more than ten years, when was there ‘knowledge’ sufficient to trigger the 90-day limitations period? We conclude that the statute's knowledge requirement was satisfied, and the 90-day period commenced, by the employee's own admitted awareness of injury and causation, even in the absence of formal medical diagnosis.” The court’s analysis was based in great part on the fact that hearing loss is treated differently by statute, and more particularly on the common sense viewpoint that hearing loss is far easier to diagnose, even by a lay person, than is any other occupational disease.

Claimant is properly chargeable with his decade-long delay in seeking the medical or legal assistance necessary to lodge his claim. Were we to accept as a rigid rule that the limitations period is commenced only upon a medical diagnosis, accrual of claims for hearing loss--a condition readily appreciated by laypersons, not requiring expert medical knowledge or diagnosis-- would be entirely within a claimant's control. Indeed, in this case, claimant delayed seeking a formal diagnosis until more than a year after filing his claim. Employers would have no recourse against injured workers who delay for years, if not decades, before seeking a medical diagnosis for the purpose of finally pursuing their claims. Such delay serves neither the interest in affording a reasonable time in which to bring claims nor the interest in putting stale claims to rest.

In other words the claimant was held responsible because he failed to act on his claim when his family yelled at him because he had the TV on too loud, which should have alerted him to the fact that his hearing was impaired.

Once a hearing loss claim is established it is usually resolved in terms of a schedule loss award, a percentage loss of hearing. The formula is set forth in the Board’s rules and regulations Subchapter G, part 351 and its subdivisions. Essentially the formula is as follows: Take the audiogram readings at 500, 1000, 2000 and 3000 Hz. Average them and subtract 25 from the result. Multiply that by 1.5 to arrive at the figure for each ear. Multiply the better (lower) figure by five, add the larger figure, and divide by six. The final percentage is the binaural evaluation of hearing impairment.

The formula does not take into account tinnitus (a ringing in the ears) nor does it allow any deductions for presbycusis, or age related loss of hearing. It also does not take into account hearing aids. The formula is for uncorrected loss of hearing.

These audiograms are not exact and may be influenced by the subject’s degree of cooperation. The validity of the tests depends in great part on the claimant’s giving honest responses regarding whether he actually hears the tones sent through the earphones. A number of years ago my firm was involved in a large number, about 600, of cases filed by Daily News pressmen, drivers and other employees claiming to have sustained hearing losses as a result of a noisy environment. I recall one driver who had filed a hearing loss claim. He was called down to the IME company that we used to conduct the audiograms and took the test. Several weeks later he received a notice from the Department of Transportation that his operators license would not be renewed because he had failed the hearing test. He volunteers to come back down to the office and retake the test, which he passed with flying colors. Unfortunately for the driver, the DOT used the same IME company to conduct their test as we did. The unlucky driver was taking his DOT test when he thought that he was taking his compensation test. Needless to say his hearing loss claim was disallowed. It’s unknown whether he ever got his DOT license.

Even when there is no attempt at fraud the audiograms are not exact and there is a certain amount of normal variation in results. For that reason, if it established that there was an occupation loss of hearing, the parties will usually try to negotiate an agreement between themselves, frequently splitting the difference between the percentages found by the claimant’s and the carrier’s medical reports.

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