Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by employer Catapano Grow Construction Company and its carrier from a decision and award of the Workmen's Compensation Board. Claimant, now deceased, a 51-year-old tunnel worker, developed advanced silico-tuberculosis of the lungs as a result of which he became totally disabled in January of 1959 while an employee of Catapano Grow. On April 2, 1959 claimant filed claims against both Catapano Grow and Mason, Johnson MacLean, claimant's prior employer. The Referee found that claimant had been exposed to dust hazard while employed with Catapano Grow and assessed liability against Catapano Grow and its carrier. The board after initially reversing the Referee on the question of exposure to dust and reopening the case against Mason, Johnson MacLean reversed itself after reargument and affirmed the decision of the Referee. It is from this determination that this appeal is brought. Appellants claim that there is no substantial evidence that claimant was exposed to an injurious dust hazard while employed with Catapano Grow and thus they should not be liable. It is admitted that claimant was exposed to an injurious dust hazard while employed by Mason, Johnson MacLean and thus the sole question is which employer is chargeable with liability (Workmen's Compensation Law, § 44-a). Appellants contend that the testimony of Robert Goodman, general manager of appellant, and the result of an investigation by the New York State Division of Industrial Hygiene established that there was no silicious dust in the area where claimant was working. This report of the Industrial Hygiene Division relied on by appellants specifically states that it was based on information supplied by Goodman since the job had been completed at the time of its investigation. It is sufficient to point out that claimant and a co-worker testified that although this job in question was a shield-dirt job and not a hardrock job that power brushes used to chip concrete from forms and drilling to remove boulders created dust to which claimant was exposed. While admittedly claimant's silicosis was probably the result of many years exposure to silica dust, on this record we cannot say that the board could not find that claimant was exposed to some dust containing silica while employed by Catapano Grow ( Matter of Colombo v. Carideo, 11 A.D.2d 845) and that appellants had not overcome the presumption that such exposure was injurious (Workmen's Compensation Law, § 47). Appellants also contend that claimant is precluded from benefits because he willfully misstated that he did not suffer from an occupational disease when he was hired by Catapano Grow when in fact silicosis must have been present (Workmen's Compensation Law, § 43). The record reveals that in 1942 he was rejected by the U.S. Army because a physical examination revealed silicosis. In 1945, however, when he attempted to assert a claim for silicosis his claim was denied and compensation refused. The logical inference to the layman from such a refusal of compensation was that the disease was not present. The record further discloses that claimant continued as a tunnel worker from 1945 to 1959 without disability, that an examination by a physician employed by Catapano Grow at the time of his hiring revealed no lung disorder and that he answered truthfully that he had suffered from caissons disease and the bends when specifically asked about these ailments. Therefore, the board's finding that claimant's denial of any "occupational disease" was not a willfully false misstatement, seems justified on this record ( Matter of Dunleavy v. Walsh, Connelly, Senior Palmer, 309 N.Y. 8). Decision and award unanimously affirmed, with one bill of costs to the claimant and carrier respondents.