APPEAL from a decision and award of the Workmen's Compensation Board, filed July 28, 1952, for benefits under the Workmen's Compensation Law.
Noel S. Symons for appellants.
Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.
Kirkpatrick & Tiernan for claimant-respondent.
The question is presented in pointed form by this case whether a man who has a nonoccupational illness aggravated by his employment suffers, in that aggravation, an 'occupational disease' within the scope of subdivision 2 of section 3 of the Workmen's Compensation Law. It can often be found readily enough, as it has been found here, that the aggravation and consequent disability are brought home directly to the work. It cannot always so readily be found, as some of the leading New York cases seem to require, that such an aggravation would be a common, expected, and inherent result of the work.
Looked at in another way the problem is whether a man who brings to his work a special kind of proneness to a disability quite different from the ordinary run of men who do the work suffers from an 'occupational' disease if the work adds an ingredient of causation to precipitate a resulting disability. To decide the question we must have recourse both to what has been said judicially and to what has been done in the actual decision of relevant cases.
Claimant was an officer of his corporate employer and worked in its ice plant. In the course of his employment it was necessary for him to be in and out of a cold room where the temperature was kept at 25 degrees and, less frequently, in and out of a locker room where the temperature was colder. The floors of the cold room were damp and wet due to the cutting of ice and claimant's feet became wet. There is proof he found it uncomfortable to wear rubbers and would not wear them.
The board has found that claimant had arteriosclerotic peripheral vascular disease of the feet. There is no proof that this condition could be caused by the occupation--the proof is entirely the other way. But the board found the work aggravated the underlying condition and found this aggravation to be an occupational disease.
The pertinent findings are that claimant 'became totally disabled as the result of the aggravation of a pre-existing condition of arteriosclerotic peripheral vascular disease of the feet and ankles, an occupational disease, which aggravation was due to the nature of his employment * * * to which all the employees of his class were subject * * * and which produced the disease as a natural incident of his employment and attached thereto a hazard which distinguished it from the usual run of occupations and which was in excess of the hazard attending employment in general.'
There is, of course, no proof in the record that all employees in claimant's class had the pre-existing condition of arteriosclerosis, the 'aggravation' of which (not the disease itself) was here found to be due to the nature of employment 'to which all the employees of his class were subject'. What the board had before it in the way of medical proof is that this individual employee, thus individually handicapped, suffered an aggravation of his own special condition due to the nature of his employment. This is quite a different thing.
It is possible to reconcile the decision of the board here with cases such as Matter of Goldberg v. 954 Marcy Corp. (276 N.Y. 313) and Matter of Harman v. Republic Aviation Corp. (298 N.Y. 285) only by holding squarely that where a pre-existing physical condition is aggravated by the employment to the point of disability this is an occupational disease even though few, or none, of the other ...