Opinion
April 27, 1971
Appeal from a decision of the Workmen's Compensation Board, filed February 27, 1970. Decedent died on January 22, 1965 from peritoneal mesothelioma. He was last employed by appellant, Baldwin Ehret-Hill, Inc., from January, 1964 to March 4, 1964 as an insulation man working on a complex of apartment buildings at a site termed the "Rochdale site". Occupational disease and causal relationship were established, and there is no dispute as to such determination. The basic dispute is which carrier is responsible for payment of the award. Appellant, Consolidated Mutual Insurance Company, covered the Rochdale site, and it contends that decedent did not work with materials at the Rochdale site which would cause the disease responsible for his death. The board determined that decedent was exposed to asbestos dust at the Rochdale site, and that liability is that of the carrier on the risk, Consolidated Mutual. There is substantial evidence to support the determination of the board that decedent was exposed to asbestos dust at the Rochdale site. The evidence is at most contradictory as to whether the employer used a material containing asbestos at the site, and there is additional evidence that other contractors were using such materials. The award was properly made against Consolidated Mutual, the carrier on the risk, on the date of the disablement "since it is the `disablement' and not the contraction of the disease which is the industrial accident". ( Matter of Lumsden v. Despatch Shops, 5 A.D.2d 242.) Decision affirmed, with one bill of costs to respondents filing briefs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.