Opinion
November 16, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by three employers and their carrier from a decision and award of the Workmen's Compensation Board which apportioned the award among four employers. Only the question of the board's right to make the apportionment is involved. Claimant became disabled on March 25, 1952, suffering aseptic necrosis, which is medically associated with and is the end result of caisson disease. The award was made against Walsh, Senior, Palmer Connolly (hereinafter called "Walsh, Senior") the last employer, for whom claimant had worked 14 days. He had previously worked for Grow Construction Company for 21 days; prior to that for George H. Flinn Corporation for 370 days, and prior to that for Walsh Construction Company for 301 days. In all of these employments claimant worked under compressed air. An application was made by Walsh, Senior for apportionment under section 44 Work. Comp. of the Workmen's Compensation Law. The board has found that claimant was suffering from compressed air illness under section 3 (subd. 2, par. 17) of the Workmen's Compensation Law; that the disease was contracted in the prior employments, and has apportioned the award in proportion to the amount of time claimant was exposed in each employment. The board has held that all exposures claimant had in compressed air contributed to the compressed air illness he now has. This holding is supported by ample medical evidence to the effect that claimant's bone damage was the cumulative effect of all exposures. Under such circumstances it was proper for the board to make apportionment. ( Matter of Miller v. National Cabinet Co., 8 A.D.2d 281, revd. on other grounds 8 N.Y.2d 277; cf. Matter of Gallagher v. Senior, Palmer Connolly, 4 A.D.2d 898; Matter of Bergested v. Connolly Co., 4 A.D.2d 893.) Decision and award unanimously affirmed, with costs to respondents against appellants.