Claim of Leveski v. Dic Underhill Joint Venture

Appeal from a decision of the Workers’ Compensation Board, filed February 21, 1980, which denied claimant’s application to reopen his case. Claimant was employed by the Die Underhill Joint Venture as a drill runner in which capacity he chipped and drilled rock and concrete. In 1972, he began medical treatment for a coronary artery disease. Claimant’s health worsened and on December 12, 1975 he stopped working. He was admitted to Mount Sinai Hospital on January 3, 1976 and during his stay it was discovered that he had developed a lung disease, viz., pneumoconiosis, a type of silicosis, caused, inter alia, by the inhalation of stone and concrete dust. On January 14, 1976 a triple coronary artery bypass operation was performed in an effort to relieve claimant’s coronary condition. Thereafter, claimant applied for workers’ compensation benefits alleging that his silicosis condition was the result of an occupational disease within the meaning of section 3 (subd 2, par 29) of the Workers’ Compensation Law. While recognizing the existence of claimant’s silicosis condition, the board ultimately found that claimant was totally disabled by reason of the non-work-related coronary condition and, accordingly, rescinded a referee’s award. Claimant never appealed the board’s decision. On August 29, 1979, claimant sought the reopening of his case. The board denied the application on February 14,1980 and this appeal ensued. The 706 board’s denial of an application to reopen may not be disturbed unless it was arbitrary and capricious or an abuse of discretion (Matter of Pressler v Maner Mfg., 72 AD2d 692, mot for lv to app den 49 NY2d 1044). We find no basis justifying disturbance' of the board’s decision in the instant case. It is well established that claimant must demonstrate a change of condition prior to a reopening (Matter of Gibbons v Zara Constr. Co., 77 AD2d 675). Accordingly, where, as here, claimant’s medical report merely reiterates claimant’s condition as it existed when the board made its original decision and offers no additional facts or newly discovered evidence, the board’s decision must be affirmed. Decision affirmed, without costs. Mahoney, P. J., Yesawich, Jr., and Weiss, JJ., concur; Mikoll, J., dissents and votes to reverse in the following memorandum.