Name

Anthony Furbush v. C.N. Brown, Inc.

Insurance Company

CCMSI

Date Decided

April 30, 2025

Panel Members

David Hirtle

Lindsey Sands

Christine Smith

Categories

Tags

File Size

154 KB

Summary from the Troubh Heisler Attorneys

Anthony Furbush v. C.N. Brown, Inc.- Where medical expert’s causation opinion was expressed in terms of “more likely than not” one of several possible theories of causation applied, the Appellate Division rejected the employer’s appeal that the ALJ erred in accepting the doctor’s opinion as competent causation evidence. The employee dropped a crate of milk on his right foot on January 13, 2021. The injury led to a partial amputation of the right foot. Later, he developed problems with his left foot that necessitated debridement surgery, including an old fracture. The ALJ granted the employee’s petition for payment of medical services for the left foot treatment expense.

The treating doctor testified that more likely than not the original right foot injury was a cause of the left foot condition, though each of the underlying reasons were themselves speculative. First, Furbush could have injured his left foot at the time of the original injury but did not realize it. Second, it could be due to an altered gait with putting greater pressure on the left foot. Third, it could be a result of the employee’s underlying diabetes. The doctor was 51% sure it was one of those three reasons.

On appeal the employer argued that an opinion that one of three possible reasons is 51% the cause is not competent to sustain the employee’s burden of proof. You cannot combine speculative reasons to make it more likely than not. The Appellate Division reviewed the basic case law on expert medical evidence but concluded it was within the ALJ’s discretion to sift through the gray areas of the doctor’s testimony to find causation, especially where there is one sentence in the deposition stating “more likely than not”.