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Zaepfel v. E.I. Dupont De Nemours & Co., Inc.

Supreme Court of New York, Appellate Division

October 20, 1954

In the Matter of the Claim of ARLENE C. ZAEPFEL, Respondent,

APPEAL from an award of the Workmen's Compensation Board, filed February 1, 1952, for disability and death benefits under the Workmen's Compensation Law, payable by appellant alone.


Edward L. Robinson, Jr., Abel Klaw, William M. Fay, Solon J. Stone and Edward J. Robinson for appellant.

George J. Hayes and Bernard Katzen for Buffalo Stainless Casting Corporation and another, respondents.

Nathaniel L. Goldstein, Attorney-General (Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.

Page 694


The deceased employee was a chemist, and following his graduation from college he was employed as a chemist successively by four employers. He worked for E. I. du Pont de Nemours & Company, Incorporated, from June 8, 1936, to December 31, 1943; for the Linde Air Products Company from January 9, 1944, to November 15, 1946, and from September 5, 1947, to July 19, 1948; for Standard Mirror Company from December 15, 1946, to August 25, 1947, and for Buffalo Stainless Casting Corporation from October 11, 1948, until November 27, 1948. On the latter date, because of illness, decedent stopped work, and on July 15, 1949, he died at the age of thirty-nine years. The disease from which decedent suffered during his lifetime, and which unquestionably caused his death, was aplastic anemia, a rare disease affecting the bone marrow and resulting in a failure of the marrow to produce certain blood substances, causing a blood deficiency.

Claims were filed for disability due to aplastic anemia alleged to be causally related to chemical exposure while working for all four of the employers, and the case was tried upon the theory that each of the employments contributed in some degree to the disease. These blanket allegations and theory, together with some evidence tending to support them, were perhaps due to the paucity of experience generally with aplastic anemia as an industrial disease. Hearings were held during the lifetime of the deceased employee, at which he testified, and, following his death a death claim was filed against all of the employers and the litigation proceeded. All parties were represented by able counsel; many distinguished experts and specialists in the fields of chemistry and medicine were called as witnesses, and a very extensive record was developed.

The board has found that decedent became totally disabled on November 2, 1948, as a result of poisoning due to benzol and benzene derivatives, contracted while in the employ of du Pont, which caused him to be disabled until July 15, 1949, and which caused his death from aplastic anemia, an occupational disease, on July 15, 1949. The board has also found that there was no causal relation between the disability and death and decedent's employment with any employer other than the appellant du Pont, and the award has been made against du Pont alone. The principal question presented is whether there is substantial evidence in this record to support such findings.

Detailed evidence was presented as to all of the chemical substances to which decedent was exposed or which he contacted during his various employments. The board has found that

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decedent was exposed to benzol and benzene derivatives in his employment as a research chemist at du Pont, and that during his employment by the other three employers 'there was no exposure to benzol or benzene derivatives, or to any other chemicals or substances sufficient to leave any detectable trace on autopsy.' There is ample evidence to sustain such a finding.

The medical testimony concerning the effect of such exposure and concerning the cause of aplastic anemia, and decedent's disability and death, was conflicting. Insofar as there was a conflict of medical testimony, it is, of course, peculiarly within the province of the board to pass upon questions of credibility and reasonableness and to weigh the evidence. (Workmen's Compensation Law, ยง 20; Matter of Altschuller v. Bressler, 289 N.Y. 463.) The conclusions of the board in those respects must be sustained if the record contains any substantial evidence to support them.

Dr. Phillies, a specialist in hematology and internal medicine, to whom decedent was referred by another doctor, attended decedent and obtained a detailed history from him, and treated him continuously from December 4, 1948, until his death. In portions of his extensive testimony he says: 'The connection between benzene ring compounds and aplastic anemia was first worked out through the exposure of people to the fumes of benzene proper, that is C6H6. That particular chemical has been incriminated and is accepted universally as a causative factor in initiating aplastic anemia. Since that has been established other benzene ring compounds are gradually being recognized as being also causative agents in suppressing or depressing the functions of the marrow.' He testified to an opinion, expressed with reasonable medical certainty, 'Historically and from the evidence presented, the picture could very well have begun at the time he was employed handling the benzene ring ...

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