Opinion
April 19, 1971
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed December 22, 1969, which awarded benefits to the claimant for total disability. The decision appealed from recites: "The Board finds that claimant, due to his exposure to grain dust in his employment with Agway, Inc., contracted pulmonary emphysema, an occupational disease coming under the provisions of Section 3, subd. 2, Paragraph 29. The Board finds that the pulmonary emphysema is totally disabling and that the date of disablement was December 2, 1967, when the occupational disease caused loss of earnings. The Board further finds that referrral to the Committee of Expert Consultants is not warranted." The appellants contend: (1) that the record does not support a finding of occupational disease; (2) there is no substantial evidence of causal relationship between emphysema and claimant's employment; (3) the board's refusal to refer the claim to the Committee of Expert Chest Consultants constituted an abuse of discretion; and (4) the board failed to apportion disability. The record contains substantial medical evidence supporting the finding of the board that the claimant's employment environment caused pulmonary emphysema and that the same was an occupational disease, and the appellants' medical evidence in regard to these issues merely raised questions of fact for the board. Although the record contains evidence that the claimant suffered from an arteriosclerotic heart disease, it does not conclusively establish that the claimant's shortness of breath and/or inability to work was caused by the heart disease and, accordingly, there was at most a question of fact for the board as to whether or not the disability should have been apportioned. The appellants have not established any basis whereby the board abused its discretion in refusing to refer the claim to the Committee of Expert Chest Consultants. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Reynolds, Staley, Greenblott and Sweeney, JJ., concur.