Opinion
June 20, 1967
Appeal by the self-insured employer from a decision awarding benefits for disability caused by acute bronchitis, found to be an occupational disease caused by exposure to harmful dusts in the employment, the board finding, further, that the bronchitis aggravated a pre-existing bronchiectasis and necessitated a pneumonectomy. A previous award based solely upon the aggravation of a pre-existing bronchiectasis was reversed, our memorandum decision, after citing Matter of Detenbeck v. General Motors Corp. ( 309 N.Y. 558), noting that claimant produced no proof that bronchiectasis was an occupational disease, so that the aggravation thereof would, under Detenbeck, be compensable, and noting, further, that there was no evidence of a new contracture such as might independently support an award. ( 21 A.D.2d 957.) Upon remittal, additional medical testimony was adduced and the board has now found a new contracture, caused independently of the old condition, which, because claimant did have a lung with impaired surfaces, progressed to an acute bronchiectasis requiring surgery. The finding is amply supported by the medical proof that: "The chronic bronchitis only produced the pneumonectomy in this man because he had a lung that couldn't take that kind of inflammatory reaction, and the further blocking off of areas to his lungs, and forming these abscesses, and that's the reason we had to take out his lung." Thus, the new bronchitis played on the old bronchiectasis to the extent that an acute condition resulted requiring surgery. There is ample authority to sustain an award where the condition linked to the employment combines with a condition not linked with the employment to produce the disability. ( Matter of Schul v. National Carbon Div., Union Carbide Co., 20 A.D.2d 936, mot. for lv. to app. den. 14 N.Y.2d 489; Matter of Majka v. Dunkirk Radiator Corp., 20 A.D.2d 743, mot. for lv. to app. den. 14 N.Y.2d 483; Matter of Ciesliewicz v. Dunkirk Radiator Corp., 17 A.D.2d 877.) The fact of occupational disease was well established. (See, e.g., Matter of Kline v. Great Atlantic Pacific Tea Co., 25 A.D.2d 806, mot. for lv. to app. den. 18 N.Y.2d 578.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gibson, P.J.