Claim of Bishop v. Comer & Pollock, Inc.

Opinion by Hill, P. J., in which Heffernan, J., concurs; Bliss, J., concurs in the decision, with a separate opinion; McNamee, J., dissents, with an opinion in which Crapser, J., concurs. Hill, P. J. Appeal by the claimant from a decision denying an award for disablement on account of an occupational disease. He presented proof that his disease, pulmonary tuberculosis, was due to the nature of his employment as a counterman and clerk in a wholesale meat market. He worked in a normal temperature, but from ten to thirty times a day entered the cold storage room where the meat was kept. There is no disagreement as to the facts, the employer and carrier produced no witnesses. The Board ruled as a matter of law: “ This claim does not come within the provisions of the Workmen’s Compensation Law ” and the Chairman wrote claimant’s attorney, “ Tuberculosis to be covered as an occupational disease must be peculiar and characteristic to the employment.” [493] Compensation is payable for a disablement caused by any occupational disease contracted in any employment enumerated in subdivision 1 of section 3. (Workmen’s Comp. Law, § 3, subd. 2, «¡[ 28, added by Laws of 1935, chap. 254.) “ If an employee is disabled. * * * and his disability * * * is caused by one of the diseases mentioned in subdivision two of section three, and the disease is due to the nature of the corresponding employment as described in such subdivision in which such employee was engaged and was contracted therein, he * * * shall be entitled to compensation * * * for the duration of his disablement.” (§ 39.) Claimant’s disease was “ due to the nature of ” his employment. There was direct causal connection between the conditions under which he worked and the tuberculosis which he contracted. It followed as a natural incident from his exposure, according to the undisputed evidence. The employment was the proximate cause of the illness. If a disease is due to the nature of the employee’s work, it is not necessary that it could have been foreseen; it is enough that it originated in and on account of the employment. Compensation is awarded for accidental injuries which arise out of and in the course of the employment. The greatest hazard in a saw mill doubtless would be the danger of being cut by the buzz saw, but compensation is paid for an injury received in falling down stairs, which would not be “ characteristic ” of employment in a saw mill. By the same token, it is not necessary to show that the disease was “ peculiar to or characteristic of ” the employment. It is enough if it appears that an employee was disabled by a disease which he suffered because of the nature of his employment in the event it is one of those enumerated in subdivision 2 of section 3. A perusal of the list of hazardous employments there enumerated discloses that there are no diseases peculiar to or characteristic of hundreds of them. The Legislature, after listing twenty-seven diseases peculiar to particular occupations, enacts the all-inclusive paragraph, and, as earlier quoted, section 39 provides that when an employee is disabled by a disease due to the nature of the employment, he shall be compensated. The question whether a disease was caused by an accident or developed without catastrophe has troubled the courts and is the subject of many opinions not always readily reconciled with every-day experience in life. Lacking an accidental cause, compensation for loss of wages could not be given. Judge Pound, in Lerner v. Rump Bros. (241 N. Y. 153) said (p. 155): “ A distinction exists between accidental injury and disease, but disease may be an accidental injury. The exception arises out of abnormal conditions which must be established to sustain an award. Two concurrent limitations have been placed on [494] the right. to recover an award * * *. First, the inception of the disease must be assignable to a determinate or single act, identified in space or time. [Citations.] Secondly, it must also be assignable to something catastrophic or extraordinary.” Discriminations, fine and fanciful, between accidents and diseases have been numerous. The entry of the germ through a slight abrasion is accidental, the absorption through the pores not. Inhalation of fumes and gases on occasions is accidental. Scientific theories, some authentic, some fallacious, have been adopted as facts to sustain or disallow a claim. A lack of consistency is found in the authorities. Awards for disablement due to diseases arising from accidental causes have been made to: The dependents of a superintendent of an apartment building who opened the window in a steam-filled room, sustained a chill and died from pneumonia (Hocke v. Emdee Management Corp., 269 N. Y. 592 [two dissents]; 245 App. Div. 882 [two dissents]); the dependents of an embalmer’s helper who died from blood poisoning (Connelly v. Hunt Furniture Co., 240 N. Y. 83); an employee who while handling wool contracted tetanus (Hart v. Wilson & Co., 227 N. Y. 554); an employee who inhaled coal gas which caused pulmonary tuberculosis (O’Dell v. Adirondack Electric Power Co., 223 N. Y. 686). It has been determined in the following cases that the disease was not the result of an accident and an award was denied to: A clerk who, after being in a cold storage room for ten minutes suffered a chill which caused pulmonary edema (Lerner v. Rump Bros., supra); an employee who handled hides and contracted anthrax (Eldridge v. Endicott, Johnson & Co., 228 N Y. 21); a mechanic who contracted dermatitis following continued contact with acid used to fill storage batteries (Wright v. Used Car Exchange, 221 App, Div. 154); one who worked in an acid factory and contracted a chronic bronchial condition, through inhalation of the fumes (Rosenthal v. National Aniline & Chemical Co., 216 App. Div. 588); an employee whose finger became infected through being immersed many times a day for more than a week in a developing solution used in a photograph gallery (Matter of Jeffreyes v. Sager Co., 198 App. Div. 446; affd., 233 N. Y. 535). Paragraph 25 (Laws of 1935, chap. 254) was enacted to place disability arising from a disease contracted in the course of the employment and caused thereby on the same plane with disability following an injury. It is salutary and wise legislation; its scope should not be limited. Each argument that sustains the wisdom of and the necessity for compensation for loss of wages because of an accidental injury arising out of an employment sustains compensation for loss of wages because of a disease due to the nature of the employment. [495] The decision should be reversed and the matter remitted for an award. Heffernan, J., concurs.