278 A.D. 623 | N.Y. App. Div. | 1951
Appeal from a decision and award of the Workmen’s Compensation Board allowing disability compensation and death benefits. The claimant’s husband was employed as a millwright foreman in a flour milling plant. His work was largely performed in a carpenter shop in the mill where he was not especially affected by dust, but at times he worked in other portions of the mill where there was exposure to flour dust, and there is proof that he coughed up dust and dirt in his saliva. Beginning July 9, 1945, he was assigned to construction work in a grain elevator where he was exposed to grain dust. There is proof that in the course of this work he became choked and had difficulty breathing. He filed a claim for disability compensation in April, 1946, and there is a sufficient record on which to find that his disability was an occupational disease resulting from exposure to dust. Appellants argue that the exposure to grain dust was not a hazard to which all employees of the same class were similarly exposed, and the essence of this argument is that the work the decedent was doing in the grain elevator was merely temporary, and not a regular part of the employment in which a millwright foreman in a flour mill would be engaged. But this work in the elevator with its consequent exposure to dust continued for five months, long enough in our view of the ease, to become the kind of hazard which was a natural incident to this employment. That this exposure was causally related to his death which occurred April 11, 1947, is a closer question. The cause of his death was stated to be cardiac exhaustion, dilation of the heart and emphysema. There is evidence in the record that the employee’s physical condition had no association with exposure to dust, but there is also opinion evidence that the exposure started a series of events leading ultimately to his death. A qualified physician testified from a hypothesis that “My opinion is that this man developed an allergy to grain dust, developed bronchial spasms, simulating asthma, and emphysema, and wound up with a dilated heart and died.” This, he said, was “ causally related to the occupation ”. Crediting this opinion the board could have made the award for death benefits. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ.