Claim of Ashley v. Mardon Operating Corp.

Appellate Division of the Supreme Court of New York

Claim of Ashley v. Mardon Operating Corp.

9 A.D.2d 826, 192 N.Y.S.2d 927, 1959 N.Y. App. Div. LEXIS 6184

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 13, 1959

StatusPublished

Cited by1 cases

This text of 9 A.D.2d 826 (Claim of Ashley v. Mardon Operating Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Ashley v. Mardon Operating Corp., 9 A.D.2d 826, 192 N.Y.S.2d 927, 1959 N.Y. App. Div. LEXIS 6184 (N.Y. Ct. App. 1959).

Pincite

Opinion

Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. The claimant went to work for this employer in 1948 as general manager and his work involved dispatching taxi drivers, collecting their cash receipts and keeping records. From 1948 until 1956 when he left work to enter the Veterans’ Hospital he worked in offices at two different locations. Both of these were located in the garages where the taxis were repaired and painted and as a result the claimant was exposed to exhaust and paint fumes. The claimant’s condition was diagnosed as emphysema, chronic upper respiratory infection and pulmonary tuberculosis. Medical testimony indicated that the emphysema, which was of long standing, had been aggravated by the exposure to noxious fumes. The Referee disallowed the claim and the board reversed finding that the emphysema was an occupational disease which had been aggravated by the exposure to fumes. The rule was laid down in Matter of Deteiibeclc v. General Motors Corp. (309. N. Y. 558), that the aggravation of a condition which is not occupational in nature, cannot be considered an occupational disease. Similarly this court has held that where there is no proof which relates the disease, to the occupation generally or which demonstrates that the disease is a hazard to which all employees in the same kind of employment are exposed a finding of occupational disease cannot be [827]*827upheld (Matter of Conroy v. Rupert Fish Co., 8 A D 2d 553; Blatter of Smith v. Sports Room Supper Club, 7 A D 2d 809). There is no proof in this record indicating that emphysema is a disease which is a common hazard of or a natural incident to this type of employment generally and the finding of occupational disease cannot therefore be sustained. Decision and award unanimously reversed and claim dismissed, with costs to the appellants against the Workmen’s Compensation Board. Present — Poster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.

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Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. The claimant went to work for this employer in 1948 as general manager and his work involved dispatching taxi drivers, collecting their cash receipts and keeping records. From 1948 until 1956 when he left work to enter the Veterans’ Hospital he worked in offices at two different locations. Both of these were located in the garages where the taxis were repaired and painted and as a result the claimant was exposed to exhaust and paint fumes. The claimant’s condition was diagnosed as emphysema, chronic upper respiratory infection and pulmonary tuberculosis. Medical testimony indicated that the emphysema, which was of long standing, had been aggravated by the exposure to noxious fumes. The Referee disallowed the claim and the board reversed finding that the emphysema was an occupational disease which had been aggravated by the exposure to fumes. The rule was laid down in Matter of Deteiibeclc v. General Motors Corp. (309. N. Y. 558), that the aggravation of a condition which is not occupational in nature, cannot be considered an occupational disease. Similarly this court has held that where there is no proof which relates the disease, to the occupation generally or which demonstrates that the disease is a hazard to which all employees in the same kind of employment are exposed a finding of occupational disease cannot be [827]*827upheld (Matter of Conroy v. Rupert Fish Co., 8 A D 2d 553; Blatter of Smith v. Sports Room Supper Club, 7 A D 2d 809). There is no proof in this record indicating that emphysema is a disease which is a common hazard of or a natural incident to this type of employment generally and the finding of occupational disease cannot therefore be sustained. Decision and award unanimously reversed and claim dismissed, with costs to the appellants against the Workmen’s Compensation Board. Present — Poster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.

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9 A.D.2d 826, 192 N.Y.S.2d 927, 1959 N.Y. App. Div. LEXIS 6184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-ashley-v-mardon-operating-corp-nyappdiv-1959.

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