Opinion
February 14, 1980
Appeal from a decision of the Workers' Compensation Board, filed September 21, 1978, which disallowed a claim for compensation under the Workers' Compensation Law. Claimant was last employed as a meat wrapper on August 5, 1972. Her work required the wrapping of meat in a polyvinyl chloride film, which was cut and sealed with a thin hot wire which caused fumes. Claimant came under the care of Dr. Biagio Battaglia on November 9, 1971 for repeated attacks of asthma. Dr. Battaglia testified that her allergic history dated back about 10 years before the first time he saw her and that the exposure to the fumes in the meat wrapping process exacerbated or aggravated her asthma, although it was not the basic cause of her disability. Claimant testified that she first became aware of a causal relationship with her work when she read a newspaper article on "meat wrapper's asthma" in February, 1975. The board found that the claimant became disabled as of July 28, 1975, the date that she first became aware that the condition was caused by an occupational hazard. The board further found that the claim was barred by section 40 of the Workers' Compensation Law, since the disease was not contracted within 12 months previous to the date of disablement. Claimant had filed her claim in the month of May, 1975. Claimant contends that contraction of the disease took place in 1975 when claimant and her doctor first learned through newspaper and medical publications that there was such a condition as meat wrapper's asthma, arguing that claimant could not have contracted a nonexisting disease. "The board may fix the disablement as of the date on which the physical impairment and the nature of the disease was diagnosed." (Matter of Altman v. Saperstein's Bake Shop, 37 A.D.2d 651, 652.) Aggravation in a claimant's last employment is the equivalent of contraction as that word is construed in section 40 of the Workers' Compensation Law (Matter of McCann v. City of New York, 27 A.D.2d 618). Under section 40 of the Workers' Compensation Law, an employee is not entitled to compensation for disability "resulting from disease unless the disease is due to the nature of his employment and contracted therein * * * within the twelve months previous to the date of disablement". This section also tolls the period for filing of a claim in the case of certain diseases, but not for "meat wrapper's asthma," permitting the filing of a claim within 90 days after disablement and after knowledge that the disease is or was due to the nature of the employment. The date on which claimant became aware that her disease was due to the nature of her employment is, therefore, not a factor to be considered. The board properly determined that claimant contracted the disease in her employment more than 12 months prior to the date of her disablement, and that her claim was barred by the provisions of section 40 of the Workers' Compensation Law. Claimant's contention that "meat wrapper's asthma" was not a known disease until 1975 is also contradicted by the testimony of Dr. Matis, who testified that it had been known by that name for about 10 years. Decision affirmed, without costs. Sweeney, J.P., Kane, Staley, Jr., Main and Herlihy, JJ., concur.