Opinion
January 17, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Three successive employers and their respective carriers appeal from a decision of the Workmen's Compensation Board which reversed the decision of a Referee disallowing the claim. Claimant was employed as a clerk-typist by appellant, Grey Advertising Agency, Inc. [Grey], for a period of about four months beginning in October, 1954, by the appellant, Lawrence Fertig Co., Inc. [Fertig], from January 13, 1956 to January 24, 1956 and by appellant, Waldorf Astoria Hotel [Waldorf], from May 31, 1956 to August 14, 1956. In her first employ she contracted an occupational dermatitis of both hands resulting from her use of "ditto paper" and "ditto cream" and an award for temporary disability was made against Grey. A similar occupational disease sustained as the result of her contact with "plastiplate", a substance similar to ditto paper, while in the employ of Fertig was later established and compensation at reduced earnings awarded accordingly. Upon payment of the respective awards, both cases were closed. Subsequently upon the application of claimant the closed claims were reopened by the board and an additional claim filed by her against Waldorf for disability arising from a dermatitis allegedly contracted through exposure to ditto paper and ditto cream while in its employ as a typist. Further testimony was adduced before a Referee at the conclusion of which the prior closings were confirmed and the claim against Waldorf disallowed on the ground that the proof failed to demonstrate that claimant had suffered "an allergic sensitivity or that any loss of earnings is related to that." Upon review a majority of the board found "that the claimant has a continuing causally related disability due equally to all three claims", reversed the decisions of the Referee and restored the cases to calendar status "for consideration of lost time and reduced earnings, if any." The testimony of physicians specializing in dermatology presented a not unusual divergence of medical opinion as to whether each episode was a new incident due to a primary irritation or whether claimant had developed an allergic sensitization as the result of the three exposures. Doctor Silberman, who examined claimant in behalf of Fertig, reported and testified that "Her previous skin condition on her hands while working for Grey's Advertising Agency has undoubtedly lowered her skin resistance" and admitted upon questioning by the Referee that "each additional contact would make the person more susceptible to a further contraction of the dermatitis when coming in contact with that substance." Doctor Riordan, a specialist who examined claimant for Grey, reported a "chronic lichenified dermatitis" on August 28, 1956. Doctor Dick, a dermatologist who examined claimant for the first time on November 26, 1958, testifying in her behalf stated that she then had "a chronic dermatitis" of both hands and a broadened base of sensitivity "to any irritants at home and perhaps at work" and expressed the opinion that she had sustained a partial disability causally related to all three employments. The resolution of the conflicting medical opinion evidence was within the factfinding power of the board and there is substantial evidence to support its findings. Appellant Waldorf also contends that it was not given notice of claimant's injury and that the claim is barred on this account. While a notice of controversy was filed which alleged, among other things, that notice of accident was not given as required, this issue was neither raised before nor passed upon by the board and may not now be considered by us. ( Matter of Braune v. Haas, 13 A.D.2d 875.) Decision unanimously affirmed, with costs to the Workmen's Compensation Board.