Opinion
January 17, 1962
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ. [As amd. and republished Jan. 18, 1962.]
This is an appeal from a decision and award of the Workmen's Compensation Board which determined claimant had a continuing partial disability of 25% from March 11, 1960 to June 4, 1960 and also found the employer was not entitled to reimbursement for supplemental disability benefits. The employer was engaged in the chemical and drug manufacturing business and the original disability of the claimant developed from a sensitivity to penicillin which resulted in bronchial asthma, found by the board to be an occupational disease and not in issue on this appeal. The record discloses that during the period here in question the employer tendered to the claimant two different work opportunities. The first was in its cafeteria where claimant remained for part of one day, finding it necessary to leave because of penicillin dust. The second opportunity was in the woman's rest room in an office area of a warehouse where, it was admitted, there was a possibility of exposure to penicillin. The claimant testified that during this time she was subject to attacks of coughing and wheezing and her doctor stated that "contact with penicillin in any form may be fatal". He further stated: "I will not advise her working anywhere where there is any possibility of any contact with penicillin, no matter where it was". (Italics supplied.) Under such unusual circumstances, we determine the claimant was justified in refusing the work offers and there is sufficient testimony in the record to substantiate a finding of continuing partial disability. It should be noted there is no finding of permanency and, in fact, the board referred the case to its vocational rehabilitation division for evaluation and training. The record would seem to suggest that as long as the claimant is disassociated from the possibility of exposure to penicillin, she is not disabled, but we make no such finding on this record. In the first instance of claimant's illness she made a claim for disability benefits and received payments from the Prudential Life Insurance Company, the carrier for the employer. Thereafter it was determined she was suffering from a compensable occupational disease and in making an award, a claim for reimbursement filed by the Prudential was allowed by the board, which claim is not the subject of this appeal. In a union contract between the employer and the employees it was agreed that in addition to any disability benefits, the employer would pay to the disabled employee a supplemental amount of $10 per week. The employer, like the carrier, filed for reimbursement of the amount paid, which claim was denied by the Referee and is one of the issues on this appeal. It is not argued that the supplemental benefit ($10) was paid pursuant to the Disability Benefit Law (Workmen's Compensation Law, § 206, subd. 2). The payment was made in compliance with the terms of a union contract and like many others, was classified as a fringe benefit. There was no provision in the union contract for reimbursement. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.