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Case History Document



Arthur M. Lach vs. Island Insulation Contract Company
Entered By: Marc C Gabriel/LymeNetDate Created:
Document Type: Decision
Title: Memorandum of Decision
STATE OF NEW YORK- WORKERS' COMPENSATION BOARD

INTEROFFICE MEMORANDUM
To:
From: W. C Law Judge
Subject: WCB# 2911 8147
Arthur M. Lach vs.
Island Insulation Contract Company
Memorandum of Decision
Date: May 7, 1997
Office: Hempstead

For the reasons stated below, I find occupational disease, notice and causal relation - Lyme's
Disease. The date of disablement is set as March 12, 1990. For the purpose of facilitating a
review of this decision, the State Insurance Fund is directed to make an advance of $100 to the
claimant. Unless otherwise directed, this case is to be restored to the calendar at the next
available date for resolution of outstanding issues.

There are three issues in this case:

1) Did the claimant contract Lyme's Disease in the course of his work? I find that he did for the
reasons stated below.

2) When did the claimant contract Lyme's Disease? I find for the reasons stated below that in
August, 1989 the claimant contracted the disease by a deer tick bite.

3) Should the Lyme's Disease in this case be classified as an accident or occupational disease?
For the reasons stated below, I find it should be classified as an occupational disease.

The claimant is employed in a family owner business. He is the brother of the President of the
business and owns 20% of the stock. From 1964 until 9/7/1989, the claimant worked for this
family business as an insulation foreman. He was the field supervisor who did the jobs at
various construction sites including both inside and outside work. In August, 1989 he was on a
construction site in Riverhead in eastern Suffolk County. He was laying pipe into and from a
building shell. The area that surrounded this construction site had trees and shrubs,( see page 22
of claimant's testimony) and had many ticks, (see testimony of Smith, page 28.)
Arthur M. Lach
Page 2

On 9/7-1989, the claimant was admitted to a hospital with complaints that mimicked a heart
attack" In retrospect, these complaints were the onset of the symptoms of Lyme's Disease. The
hospital took an intake questionnaire where the claimant responded that he had no history of tick
bites. Testing in October, 1989 showed borderline indications of possible Lyme's Disease and
on March 12, 1990, a positive finding of Lyme's Disease was made from a test. This became the
date of disablement, noted above.

Lyme's Disease is transmitted to humans by the bite of a deer tick. An important issue in this case
is when did the claimant contract Lyme's Disease. I find that it is not possible to pinpoint the date
of the bite, but that it probably happened in August, 1989. This finding is based on the onset of
Lyme's Disease symptoms as recorded in the hospital record of 9/7-1989 and the medical note of
Dr. Anreder and testimony of Dr. Dattwyler that the symptoms of Lyme's Disease manifest
themselves two weeks to two months after the deer tick bite.

The claimant through testimony attempted to establish the date of the contraction of Lyme's
Disease as 8/21/89. Mr. Smith testified that while at the construction site, there was a tick on the
claimant's body which Smith flicked away. That this tick caused the claimant to contract Lyme's
Disease is unlikely. Most ticks are not deer ticks. Moreover, Dr. Dattwyler testified that a deer
tick buries itself in flesh and could not be dislodged by the mere flick of a finger as described in
the testimony. Incidentally, it is not unusual that people cannot identify the circumstances during
which they were bitten by the deer tick, (see Dr. Anreder's medical note and Dr. Dattwyler's
testimony.)
Accident Issue

The State Insurance Fund asserts on the issue of accident that since the claimant cannot pinpoint
the date of injury, he is precluded on the claim of accident. Moreover, the State Insurance Fund
contends that it did not receive notice within 30 days as required by Section 18 of the Workers'
Compensation Law and that the claim is time-barred by Section 28 of the Workers'
Compensation Law.

_ The fact that the claimant cannot reliably pinpoint the date of the bite does not preclude the
claim, see Middletown vs. Coxsaxie Correctional Facility. 38 N.Y. 2nd 130. The claimant did
establish through his testimony and that of Smith that he was in August, 1989 an outside worker
in eastern Suffolk County. Through the testimony of Dr. Dattwyler the claimant did establish that
the Long Island region, including eastern Suffolk County has an infestation of deer ticks. Dr.
Dattwyler further testified that outside workers in this region have a statistically high incidence
of Lyme's Disease. The claimant through his hospital records established the onset of the
symptoms of Lyme's Disease on 9/7-1989 and medically documented that he in fact has Lyme's
Disease. Given this evidence of exposure to Lyme's Disease in his work setting, the statutory
presumption of Section 21 (1) arises that the Lyme's Disease was contracted in the
Arthur M. Lach
Page 3

course of the claimant's work. There is no substantial evidence to rebut this presumption and I,
therefore, find that the Lyme's Disease arose from the claimant's work.

On the issue of notice and Statute of Limitations, the State Insurance Fund asserts that this claim
is precluded by the Today notice requirement of Section 18 and time-barred by Section 28 of the
Workers' Compensation Law. For the reasons stated below, I find that this claim is governed by
Section 45 and that notice was properly given and case filed within two years of the date of
disablement. However, since a claim under Section 2 was asserted, the issues raised under that
section are addressed to give the Workers' Compensation Board an opportunity to review this
entire case if necessary.

This claim was filed on 8/20/91. Consequently there was a delayed notice to the State Insurance
Fund since the tick bite was probably in 8/1989. The claimant's explanation for delaying filing
the C-3 was that he had hoped that the medical problems would resolve and that it would not be
necessary to ever file for Workers' Compensation. However, as time passed the medical
complications and seriousness of the Lyme's Disease required filing a claim. This is consistent
with the testimony of his brother, the President of the family-owned business that so-called minor
work- related injuries were paid for by the company and no filings were made with the Workers'
Compensation system. While this is an explanation, it is not an excuse for delaying filing. The
Workers' Compensation Board does have the authority to excuse untimely filing if such lateness
does not prejudice the carrier. To determine whether the carrier was prejudiced it is necessary
to consider the operative facts upon which this claim is based. Essentially, this claim rests upon
the medical documentation of Lyme's Disease and the claimant's status as an outside worker.
Interestingly, this case has little to do with the credibility of either the claimant or his employer.
The claimant's lack of reliable knowledge of the circumstances that caused him to contract
Lyme's Disease is well illustrated by his admission to the hospital on 9/7/89. The claimant in
fact had been bitten by a deer tick and was experiencing the onset of the symptoms of Lyme's
Disease. When he entered the hospital he believed he was having a heart attack and told the staff
he had no history of tick bites. It is clear that early notice would not have been helpful to the
carrier on this issue. On the question of claimant's status as an outside worker, it may have been
useful to have early notice. However, it is hardly material since the claimant, Smith and the
President of the company testified to the outside work activities. Moreover, in August, 1989 the
construction site was the Suffolk County jail, a public project with the employer as a
subcontractor. An investigation whether undertaken in 1989 or 1991 would have access to the
public records of a public project and the employer's involvement therewith. In short, given the
circumstances of this particular case, the State Insurance Fund was not prejudiced by the filing in
8/91.
,.r
Arthur M. Lach
Page 4
Occupational Disease

Dr. Dattwyler is a nationally recognized expert on Lyme's Disease and is associated with the
State University at Stony Brook which is a regional center for the treatment of Lyme's Disease. It
was his opinion that the Long Island region (Suffolk and Nassau Counties) has an exceptionally
high density of the deer tick. It was further his opinion that outside workers have a substantial
risk of getting Lyme's Disease and that the risk of such disease is statistically much greater for
outside workers than indoor workers. This opinion in part rests on two scientific studies. One of
those studies involved the federal government and the Fire Island National Park where federal
employees working in the open area of the parkland have very high rates of Lyme's Disease. The
second study was a comparison of Long Island with Queens County with results similar to the
Fire Island study. In short, outside employees in Suffolk County are at much higher risk to get
Lyme's Disease than the general population and at much greater risk than inside workers in the
same area.

I find based on the credible evidence of Dr. Dattwyler that this claimant was an outside worker
in August, 1989 and was exposed to Lyme's Disease as a natural incident of the claimant's
employment as an outside worker in eastern Suffolk County. Consequentially, under these
circumstances the Lyme's Disease for this claimant was an occupational disease. (See Tinelli vs.
Ken Duncan Ltd., 199 A.D. 2nd 567 and McKillop vs. McKillop Funeral Home Inc. 188 A.D.
2nd 59.
JM:aa

James Mulligan

W.C. Law Judge

The Lyme Disease Network of NJ, Inc.
43 Winton Road
East Brunswick, NJ 08816
http://www.lymenet.org/