Opinion
August 1, 1961
This is an appeal by the Special Fund for Reopened Cases and the Special Disability Fund from a decision and award of the Workmen's Compensation Board which allowed claimant compensation for disability due to silicosis under former article 4-A of the law for the maximum amount payable thereunder of $1,500 at the time fixed as the actual date of disablement on February 16, 1939. This part of the award is charged to the Special Fund under section 25-a. The board also allowed the claimant disability from June 1, 1956 to July 30, 1959 and payments to be continued at $25 per week, this chargeable to the Special Disability Fund (§ 15, subd. 8, par. [ee]). The Special Fund contends that the board's finding of February 16, 1939 as the date of disablement is in error, that the claimant did not in fact become totally disabled from silicosis until June, 1956; that, therefore, total disability herein did not result within two years of the date of the last exposure in January, 1939 within the meaning of section 44-a of the law. The Special Fund also contends that based upon the board's finding of February 16, 1939 as the date of disablement, that the claim is outlawed under sections 28, 25-a, 44-a and 123, since no claim for silicosis disability was filed within two years of the date of disablement and more than 18 years expired before a claim for silicosis disability was filed, leaving the board without jurisdiction to change or reverse its original determination of accident in April, 1938. The board has found in connection with section 44-a (1) that claimant was totally disabled on February 16, 1939 as the result of silicosis, and accordingly comes within the statutory requirement that total disability occur within two years from the last injurious exposure (Jan. 22, 1939); (2) that section 123 is not a bar inasmuch as "there has not been a lapse of 18 years from the date of disablement, 2/16/39, no decision adverse to the occupational disease claim has ever been made and compensation has been paid for disability occasioned by an occupational disease"; (3) that section 28 is not a bar since medical payments were made with the knowledge that treatments were given and a claim was being made for an occupational disease, which constituted an advance payment. The facts of this case are as follows: On April 14, 1938, claimant, employed by Walsh Construction Company, was overcome by powder smoke while working as a drill helper in the Queens Midtown tunnel. On May 7, 1938, Dr. Singer, the attending physician described the injury as marked shortness of breath, cyanosis of lips, scattered moist rales over the entire lung fields; he causally related the accident (the exposure to powder smoke) to the injuries above described. At a hearing held September 21, 1938, Dr. Singer testified that his diagnosis was diffuse bronchopneumonia, or pneumonitis. He had medically discharged claimant on June 4, 1938. An award was made from April 14, 1938 to September 6, 1938 and the case was closed. On November 14, 1938, Dr. Singer filed a supplemental report which detailed further treatment from October 24, 1938 to that date. This report stated that claimant had been exposed to powder smoke and the objective findings of Dr. Singer were quite similar to his prior findings. He subsequently diagnosed claimant's condition in October as recurrent bronchitis. Dr. Singer's report also stated that he was uncertain as to when claimant could return to his usual work or resume any work. On December 25, the same physician filed a report (not in the record) in which he stated that claimant had been under his care for bronchitis, shortness of breath, fever, and pain in the chest following silicosis April 20, 1938 to August 5, 1938; also for relapse of the same condition starting October 24 to present date. This report further stated that these findings were confirmed by X ray on November 5, 1938. At a hearing held January 4, 1939 the matter was referred to the Silicosis Board. Between this date and the date of the next hearing, March 22, 1939, Dr. Mayer, an impartial board specialist examined claimant and reported on February 6, 1939 that while an X ray revealed questionable suggestive evidence of nodular discrete deposits as of early silicosis in the lower lobes, the duration of exposure to silica (7 months) was too short to constitute a silicosis hazard. The diagnosis was chronic irritative bronchitis with fibrosis and emphysema from long exposure to powder fumes and dust. Dr. Singer also submitted another supplementary report in which he stated that the injury would result in a permanent defect — pulmonary complication of silicosis. On March 22, 1939, the case was considered as reopened. The Referee noted that the previous award was predicated upon the happening of an accident, but now claimant was "going on some other theory; that there has been a continuous inhalation of the smoke and fumes." The attorney for the carrier and employer felt that if claimant had any claim at all, it was under article 4-A. The hearing was adjourned for the production of medical evidence. The next hearing of any consequence took place on October 4, 1939 at which time Dr. Singer testified to his silicosis findings, and to causal relation between claimant's inhalation of gases and his chronic bronchitis and emphysema. Claimant himself testified that every time he returned to his work his sickness returned upon exposure to powder smoke. On December 6, 1939, a decision of the Referee closed the case on the previous award inasmuch as he could find no disability from the original accident. These minutes are not in the record. After review by the board, the Referee's decision was rescinded, and the case restored for the purpose of making an award. The board found that credible medical evidence sustained a finding of causal relation between the accident of April 14, 1938 and claimant's condition subsequent to September 6, 1938. On June 17, 1940 Dr. Fox found moist rales over the right base of the lung and cautioned against claimant returning to an environment of fumes or irritative dust. Dr. Singer filed a report July 13, 1940 in which he related a finding of considerable emphysema and rales in the chest. On June 19, 1940, the Referee attempted to establish the dates of claimant's disability. It appears that there was a mixture of total disability and partial disability. The attorney for the employer and carrier again stated that the case may fall under article 4-A and if so, partial disability would not be compensable. The Referee finally gave an award from October 24, 1938 to February 11, 1939 apparently on the basis of total disability over the carrier's objection that claimant testified he had worked on February 1, 1939. The case was continued for submission of evidence of any continuing partial disability. On September 25, 1940, the Referee fixed a lump sum settlement in the sum of $1,200 by consent of all parties. The formal award and decision on October 10, 1940 approved this settlement to cover disability due to an "Occupational Disease" condition. Subsequently, on April 25, 1952 the claimant filed a separate claim for disability resulting from caisson disease. On June 8, 1956 a lump sum adjustment was approved and the case closed. While the caisson disease case was pending, claimant met with an accident February 19, 1953. A claim for the resulting disability was closed December 18, 1953 by the granting of an award. Thereafter, on July 10, 1956, a medical report was filed by Dr. Dorfmann in which he stated that claimant's present pathology of pulmonary silicosis, emphysema and chronic bronchitis and total disability warranted a reopening of the 1938 claim. Dr. Mayer, the specialist who examined claimant in 1939, conducted a re-examination and concluded that claimant had advanced modular silicosis and pulmonary emphysema. In view of the extensive involvement of the lung with silicosis and evidence of associated infection claimant was considered as totally disabled. On January 24, 1957 a hearing was held at which claimant stated he was applying for reopening of the 1940 case on the theory that newly discovered medical evidence proved that claimant suffered from silicosis in 1938 and the findings of the board should be amended to include a diagnosis of silicosis. The claim was denied on the grounds that the 1938 proceedings were based upon a claim of accident and not occupational disease and therefore, a new claim must be filed. This decision was reversed by the board and the case restored for an examination of Dr. Mayer. On January 20, 1958, the supervisor of records for Walsh Construction Company testified that claimant worked in compressed air for half a shift on January 22, 1939. This is the date which the board subsequently determined to be the date of last injurious exposure. The supervisor further testified as to medical payments made by Walsh pursuant to the April 14, 1938 accident. On May 7, 1958, Dr. Mayer, the impartial board specialist, testified that claimant was totally disabled in 1956; furthermore, had he been aware of claimant's long history of employment as a rock driller, he would have, in 1939, interpreted the modular deposits as silicotic. However, the Referee disallowed the claim since a new claim had not been filed. The board reversed, finding that claimant, as the result of his occupation, contracted silicosis which was totally disabling on February 16, 1939. The case was remanded for evidence of causal relationship. The Referee found claimant totally and permanently disabled. An award was made against the Special Fund under article 4-A. The Special Disability Fund was charged with an award from June 1, 1956 to July 30, 1959. This award was formalized in a corrected decision, September 2, 1959. The board subsequently affirmed. Its memorandum for affirmance relied upon its findings of December 24, 1958. This appeal is from the aforesaid decision. The first issue raised by appellants relates to section 44-a as a bar to claimant's award. In our view the board could find January 22, 1939 as the date of the last injurious exposure and that there was total disability on February 16, 1939. Granted there was a conflict in the expert medical proof, but this merely created an issue of fact, which has been decided by the board in favor of claimant (Workmen's Compensation Law, § 42; Matter of Lawton v. Port of N Y Auth., 276 App. Div. 81, 87), and of course the silicosis need not be the sole cause of disability if it becomes so in conjunction with other pathological conditions present ( Matter of Chomenko v. Elmira Foundry Co., 272 App. Div. 1088; Matter of Muldoon v. Woods Co., 8 A.D.2d 888, motion for leave to appeal denied 7 N.Y.2d 706). There is evidence relating to claimant's silicosis condition as of January 22, 1939, the date of the last injurious exposure; and on the basis of this evidence, the board was justified in holding that claimant was totally disabled as of February 16, 1939 and that this total disability was due to silicosis and therefore section 44-a is not a bar inasmuch as the total disability occurred less than a month subsequent to the last injurious exposure. The fact that the total disability at that time was temporary and not permanent should not work to claimant's detriment inasmuch as the very wording of former section 66 provides for compensation in either instance and any time limitation within which a "disability" must arise (§ 44-a; former § 67) should be read in conjunction therewith. The second issue raised by appellants attacks the holding of the board that sections 123 and 25-a are not a bar inasmuch as "there has not been a lapse of 18 years from the date of disablement, February 16, 1939, no decision adverse to the occupational disease claim has ever been made and compensation has been paid for disability occasioned by an occupational disease." Section 123 provides that the board's jurisdiction over each case is continuing: "except that, where the employer has secured the payment of compensation * * * no claim for compensation or for death benefits that has been disallowed after a trial on the merits, or that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident or death. Nor shall any award of compensation or death benefits be made against the special fund provided in section twenty-five-a of this chapter or against an employer or an insurance carrier where application therefor is made after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation." It will be observed that subdivision 1 of section 25-a, empowering the board to make awards against the Special Fund, is "subject to the provisions of section one hundred and twenty-three of this chapter:" and as to this limitation, the Court of Appeals has said: "In our opinion, its manifest purpose was to benefit the Special Fund in two classes of exceptions set forth in section 123: (1) where the claim `has been disallowed after a trial on the merits', e.g., as in the Kaplan case, where the issue of causal relationship was presented, contested and decided adversely to the claimant, and (2) where the claim `has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits', as in the Houston case. It follows that, after the lapse of seven years, the Special Fund remains liable in all other cases where the claim `has been disallowed or * * * otherwise disposed of without an award of compensation' (Workmen's Compensation Law, § 25-a, subd. 1), and such liability continues until the `lapse of eighteen years from the date of the injury' and also `eight years from the date of the last payment of compensation' (Workmen's Compensation Law, § 25-a, subd. 6; last sentence of § 123). * * * We are led to the logical and inescapable conclusion that the Legislature intended to relieve the Special Fund of liability for, and to put at rest, stale claims attempted to be reasserted after seven years by claimants who had failed to make out a case in contested hearings or had failed even to attempt to assert their claims after due notice and an opportunity to be heard." ( Matter of Kaplan v. Wirth Birnbaum, 301 N.Y. 121, 126.) The fact is, claimant never attempted to predicate his disability on a silicosis condition; and as conceded by appellants, no such claim was ever made. The 1939-1940 proceedings were conducted on the basis that claimant was suffering from chronic bronchitis and emphysema as the result of injurious exposures, and this condition was causally related to the "accident" claimant sustained April 14, 1938. It was on this premise that an award was made for claimant's total disability between October 24, 1938 and February 11, 1939. There is no express finding by either the Referee or the board that claimant did or did not have a silicotic condition in 1939-1940. This is not an instance of a claimant reasserting a case which he had failed to make out in prior contested hearings ( Matter of Kaplan, supra). Here was no "trial on the merits" within the contemplation of section 123. Neither was the case "disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits." This latter category refers to gross laches, indifference, etc., resulting in nonappearance of the claimant ( Matter of Kaplan, supra). Moreover, 18 years have not lapsed from the date of injury to the date of reopening. The date of injury was February 16, 1939 (the date of total disablement, Matter of Kopee v. Buffalo Brake Beam-Acme Steel Malleable Iron Works, 2 A.D.2d 946) and the date of reopening was predicated on the medical report of Dr. Dorfmann, July, 1956. Finally, the Special Funds assert that section 28 precludes a silicosis recovery by claimant. While the right to compensation is barred unless a claim for such is filed within the statutory period, there are two exceptions both of which may be said to be applicable here: (1) There is a waiver unless the objection to the failure to file is raised on the first hearing or such claim at which all parties in interest are present; (2) there is also a waiver if there is an advance payment of compensation. (1) At the first hearing at which all interested parties were present the claim for silicosis was made by claimant's attorney. "Mr. Maloney: What is your claim, sir? Mr. Doblin: The claim is that the man is totally disabled from silicosis. Mr. Maloney: And that's as a result of the accident of April 14, 1938. Mr. Doblin: As a result of the accident and exposure which this man worked for Walsh Construction Company in 1938." The record is devoid of section 28 challenge. This, as a matter of law, is sufficient to waive the bar of section 28 ( Matter of Zgrodek v. National Gypsum Co., 275 App. Div. 1014, motion for leave to appeal denied 300 N.Y. 765; Matter of Daniels v. Costick Sons, 4 A.D.2d 896). (2) The board, however, has found an advance payment of compensation in the payment of medical expenses "with the knowledge that such treatments were being given for an occupational disease." ( Matter of Maloney v. Sperry Gyroscope Co., 9 A.D.2d 819; Matter of Brooks v. Semet Solvay Division, 9 A.D.2d 592; Matter of Salemi v. Farrand Optical Co., 302 N.Y. 837.) The record shows that Walsh Construction Company paid the medical bills for 19 visits to Dr. Singer, claimant's attending physician. There is also evidence of payments for room and board at a nursing home subsequent to claimant's exposure on April 14, 1938. A Dr. Fox received remuneration in the Fall of 1940. While appellants contend that there was no conclusion that claimant was then suffering from silicosis the fact remains that the acts of payment recognized the compensable condition of claimant, a condition attributable to his work. In our view the board was justified in finding an "advance payment." Decision and award affirmed, with costs to respondents filing a brief. Gibson, J.P., Herlihy, Reynolds and Taylor, JJ., concur.