Opinion
May 5, 1926.
Appeal from State Industrial Board.
Ireland, Caverly Hanley [ W.S. Pendleton of counsel], for the appellants.
Albert Ottinger, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.
We have here an award for disability not due to occupational disease but solely to an accidental injury. The undisputed evidence is that for some six years the claimant worked in the same employment, breathing the same kind of fumes, and during this time had felt their effects; on January 17, 1924, the fumes in the room where claimant worked were stronger than usual; some men were thereby driven from the room, but none were overcome; claimant remained in the room and did his work the full day; he quit work on the following day and remained away till February first, during which period he suffered from shortness of breath and bronchitis; when he returned February first he was told the fumes were affecting him and he could work in another part of the plant, but, on account of the larger pay, he chose to continue in the old place; the fumes continued; his condition grew worse until about September third, when, on the advice of his family doctor, he quit the job. It thus appears that the experience of January seventeenth did not cause his disease. We cannot fix time or place when a disease was contracted. ( Jeffreyes v. Sager Co., 198 App. Div. 446; 233 N.Y. 535.) The contracting was gradual, by natural inhaling, and extended over a period of months or years. We find nothing "catastrophic or extraordinary" in the happenings to which to attribute the inception of disease. ( Matter of Lerner v. Rump Bros., 241 N.Y. 153.) We think the claim is outside the rule in Matter of Connelly v. Hunt Furniture Co. ( 240 N.Y. 83). When claimant returned to work February first he had the same disease he had had for a long time, but was able to continue working and earning the same wages until September when, by constant inhaling of the fumes, his affliction had so progressed as to induce his physician to advise him to stop. He thereupon left. His condition then is not traceable in any degree to the happening on January seventeenth. The award is confined to a period after he thus left. After so leaving he began work for an insurance company, since which time his condition has improved, though he still occasionally is subject to wheezing. Not on account of his condition is he receiving less wages than when he worked for this employer; his lower wage now is due solely to the fact that the employment pays a lower wage. We do not think there is any evidence showing that claimant has a disability which is due to an accidental injury sustained on January 17, 1924.
Since his ailment is not an occupational disease, we can conceive of no theory on which an award in this case could be made which could be sustained.
The award should be reversed and the claim dismissed, with costs against the State Industrial Board.
All concur.
Award reversed and claim dismissed, with costs against the State Industrial Board.