Claim of Wojewodzic v. Republic Steel Corp.

22 A.D.2d 728, 253 N.Y.S.2d 161, 1964 N.Y. App. Div. LEXIS 2992

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1964
• Status: Published

Opinion

Herlihy, J.

This appeal concerns the adequacy of the board’s finding of total disability due to silicosis. The pertinent part of the board’s finding states: “'Claimant is permanently and totally disabled due to silicosis and heart disease. Medical evidence indicates the silicosis was a contributing factor in the disability. The Board finds that claimant is totally disabled due to silicosis and that disablement from the silicosis occurred on February 2, 1959.” (Emphasis supplied.) Section 39, as applicable, states: “compensation shall not be payable for partial disability due to silicosis”. Upon first reading the board’s decision, it might indicate there was some question as to its intent but the last-quoted paragraph unequivocally makes a finding in compliance with the mandate of the statute. There is substantial evidence to sustain this factual determination. The following colloquy took place upon cross-examination of the claimant’s doctor: “ Q. Would you say it [heart disease] would disable the claimant? A. I wouldn’t say it would disable this claimant, no. Q. It doesn’t play any factor in the overall disability? A. The man has total disability as regards silicosis. That is your answer. Q. In other words then it is your testimony that this other condition is playing no part in the disability, is that correct ? • A. It plays no part in the fact that he is totally disabled from silicosis.” The record as a whole confirms the board’s determination. Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.