SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
September 11, 1969
IN THE MATTER OF THE CLAIM OF NORMAN LEFFLER, RESPONDENT,
B. T. BABBITT, INC., ET AL., APPELLANTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Gibson, P. J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Greenblott, JJ., concur in memorandum by Gibson, P. J.
Appeal from a decision awarding compensation benefits for disability due to silicosis. The employer and carrier concede that claimant suffers from silicosis causally related to the employment but contend that claimant is not permanently and totally disabled, so as to be entitled to benefits. (Workmen's Compensation Law, § 39.) Dr. Davies, the board's impartial specialist, and, incidentally, the only expert in chest diseases to report or testify, stated in his report that "claimant has a pulmonary silicosis [and] * * * is totally and permanently disabled and this disability is due to his work". In his testimony Dr. Davies repeated and elaborated upon these conclusions. The board chose to accept them and we perceive no reason to interfere with its determination. Certainly, the doctor's testimony was not incredible as a matter of law, as appellants contend, because claimant worked for a period of some months prior to the July 1, 1966 disablement date found by the board, during which period Dr. Davies, on the basis of January, 1966 X rays and other proof, considered him totally disabled. (See Matter of Nowicki v. Allegheny Ludlum Steel Corp., 21 A.D.2d 946.) Furthermore, an increase in disability was demonstrated by X rays taken six months after the July 1, 1966 disablement date. There was proof that claimant had had several intermittent periods of total disability due to rheumatoid arthritis; but the board found "that despite the presence of a concurrent generalized rheumatoid arthritis, claimant become permanently and totally disabled by reason of his causally related silicosis on July 1, 1966". In any event, total disability due to arthritis would not necessarily bar an award for total disability due to silicosis, predicated, as here, upon substantial evidence. (Matter of Iodice v. General Abrasive Co., 5 A.D.2d 707; and see Matter of Aquillina v. Victor Adding Mach. Co., 26 A.D.2d 869, mot. for lv. to app. den. 19 N.Y.2d 577.)
Decision affirmed, with costs to the Workmen's Compensation Board.
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