Claim of Semon v. George H. Flinn Corp.

4 A.D.2d 908, 166 N.Y.S.2d 835, 1957 N.Y. App. Div. LEXIS 4303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1957
• Status: Published

Opinion

Appeal from a decision and award of the Workmen’s Compensation Board. The question in this ease is the proper rate of compensation for a disease due to compressed air. At the time of the last injurious exposure on June 22, 1947 the maximum rate of compensation that would have been allowed in the case was $28 a week. Disablement due to caisson disease arising from this and earlier exposure to compressed air was found to have resulted on May 15, 1952. At that time the maximum rate of compensation was $32 a week and this is the rate allowed by the board. It is argued by appellants that the applicable rate is that allowable at the time of the last exposure. The amendment to the statutes increasing the rate of compensation (Workmen’s Compensation Law, § 15, subd. 6; L. 1948, eh. 232) provided that it would apply to a “ disablement ” due to occupational disease “ that occurs on or after July first, nineteen hundred forty-eight”. Thus it is the date of disablement, and not the date of last exposure, that is controlling. In occupational diseases, the time of contraction is some times unknown and its development may be a slow process. For this reason the disablement is regarded as the “ accident ”, and the right to compensation in such a case depends on disablement. (Cf. Matter of Smith v. City of Rochester, 285 App. Div. 46; Matter of McCann v. Walsh Constr. Co., 282 App. Div. 444, affd. 306 N. Y. 904.) The “ disablement” from an occupational disease “shall be treated as” the happening of an accident. (Workmen’s Compensation Law, § 38). Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.