IN RE: the Claim of Hector DEMERS

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Hector DEMERS, Appellant, v. ST. LAWRENCE PSYCHIATRIC CENTER et al., Respondents. Workers' Compensation Board, Respondent.

Decided: April 20, 2000

Before:  CREW III, J.P., PETERS, SPAIN, GRAFFEO and MUGGLIN, JJ. Oot & Stratton (Michael P. Oot of counsel), Dewitt, for appellant. James P. O'Connor, State Insurance Fund (Lawrence L. Friedman of counsel), New York City, for State Insurance Fund, respondent.

Appeal from a decision of the Workers' Compensation Board, filed January 11, 1999, which ruled that claimant did not sustain an occupational disease and denied his claim for workers' compensation benefits.

Claimant, who suffers from an asbestos-related lung disease caused by his exposure to asbestos while working as a therapy aide for the employer from 1955 to 1986, filed a claim for workers' compensation benefits alleging that his condition constituted an occupational disease.   Finding that exposure to asbestos was not a distinctive feature of claimant's employment, the Workers' Compensation Board ultimately ruled that claimant did not sustain an occupational disease and denied the claim for benefits.   This appeal by claimant followed.

 We affirm.   It is well settled that “[a]n occupational disease is a condition which derives from the very nature of the employment and not from an environmental condition specific to the place of work” (Matter of Bates v. Marine Midland Bank, 256 A.D.2d 948, 948, 682 N.Y.S.2d 282).   As applied to the matter before us, claimant was required to establish a “recognizable link” between his lung condition and a distinctive feature of his employment as a therapy aide (see, Matter of Leventer v. Yeshiva of Flatbush, 257 A.D.2d 903, 904, 684 N.Y.S.2d 658;  Matter of Bryant v. City of New York, 252 A.D.2d 777, 676 N.Y.S.2d 267, lv. denied 92 N.Y.2d 813, 681 N.Y.S.2d 474, 704 N.E.2d 227).   This claimant failed to do.   The record as a whole establishes that the buildings in which claimant worked housed an extensive system of steam pipes wrapped in asbestos insulation and that such insulation, in turn, would flake off and settle on surrounding surfaces.   Hence, the hazard to which claimant was exposed stemmed not from a distinctive feature of claimant's employment as a therapy aide but, rather, from his work environment in general.   Under such circumstances, we cannot say that the Board erred in ruling that claimant did not sustain an occupational disease.   Claimant's remaining contentions, to the extent that they are properly before us, have been examined and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

CREW III, J.P.

PETERS, SPAIN, GRAFFEO and MUGGLIN, JJ., concur.

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