Claim of Boyuk v. Triad Retail Media

NY3d 865 [2013]).^[1] Claimant testified that she is sensitive to fragrances and that, on the day of the incident, the fragrance produced by an industrial strength aroma therapy diffuser caused an adverse respiratory reaction with various symptoms that ultimately produced her asthma condition. Following this incident, she sought treatment from Evelyn Tolston, a physician and allergist, for her alleged occupational asthma. Based upon her interview and physical examination of claimant, Tolston reported, among other things, that administration of the methacholine test produced results that were “undoubtedly diagnostic of bronchial asthma” and concluded that claimant had sustained causally related occupational asthma.

Contrary to the conclusion reached by Tolston, Monroe Karetzky, a pulmonologist who conducted pulmonary function tests and lateral chest X rays during the course of his independent medical examination of claimant, reported an absence of objective findings to support a diagnosis of a pulmonary disability or any respiratory impairment and that claimant does not present with lung disease, including reactive airway disease or interstitial disease. Although claimant alleged in her C-3 form that, prior to the incident in question, she “was not diagnosed with asthma” and did not “require prescription medication,” Karetzky testified, based upon his review of claimant’s medical history, that claimant was first diagnosed with asthma in 2012, for which she was prescribed short and long-term acting bronchodilators, and that her alleged respiratory condition could be attributable to her cohabitation with five cats and three dogs. Karetzky further indicated that, after performing various objective testing of claimant, she presented with no lung abnormalities, “no evidence of any obstructive lung disease, reactive lung disease or any sort of restrictive lung disease” and no “objective findings to indicate the presence of any lung disease” or any pulmonary disability. Finally, Karetzky disagreed with Tolston’s diagnostic conclusions because her administration of the methacholine provocation test produced inaccurate test results inasmuch as the spiro-gram data reflects that claimant’s inspiratory maneuver was impaired and inadequate. According proper deference to the Board’s resolution of the conflicting medical evidence regarding whether claimant sustained a causally-related occupational re