135 A.D.2d 964 | N.Y. App. Div. | 1987
Appeal from an amended decision of the Workers’ Compensation Board, filed July 25, 1985.
Claimant was disabled by occupational dermatitis, a severe skin irritation caused by an adverse reaction to grease and oil in his occupation as an auto mechanic. His condition was found to be compensable and he was paid benefits from 1959 until 1964. Although no further time was lost or compensation paid, claimant continued receiving medical treatment every 4 to 6 weeks and, in 1976, was classified "permanently partially disabled” due to his dermatitis. Claimant’s case was never closed and in 1977 was "continued to termination of treatment which is to continue as needed”. Hearings were held every year or two to assess his condition and possible lost time. At a 1982 hearing, claimant informed the Workers’ Compensation Law Judge that he had retired six months previously because of his condition. At a subsequent hearing to determine whether claimant’s retirement was causally related to his occupational dermatitis, the employer’s workers’ compensation carrier contended that any award was time barred by virtue of Workers’ Compensation Law § 123. The Workers’ Compensation Board ultimately found that such statute did not bar an award and that claimant’s retirement was causally related to his permanent partial disability. The employer and carrier appeal.
Workers’ Compensation Law § 123 provides, in pertinent part, as follows: "The power and jurisdiction of the board * * * shall be continuing * * * except that * * * [no] award of compensation or death benefits [shall] be made * * * against an employer or an insurance carrier where application therefor is made after a lapse of eighteen years from the date of the injury * * * and also a lapse of eight years from the date of the last payment of compensation.” In the instant case, the Board’s action came well beyond the 18- and 8-year
Next, the employer and carrier argue that claimant’s retirement was a voluntary withdrawal from the labor market such that he is not entitled to compensation. If claimant’s occupational dermatitis contributed to his decision to retire, he would be entitled to benefits (see, Matter of Molyneux v New York Tel. Co., 101 AD2d 903; Matter of Tober v Crescent Niagara Corp., 64 AD2d 741, lv denied 45 NY2d 711). Claimant testified to the deteriorating condition of his skin due to exposure to grease and oil at his job. This testimony was fully supported by that of his treating physician. The employer and carrier offered no medical proof, but relied on testimony of witnesses to attempt to prove that claimant normally was not exposed to grease and oil in his job. However, on cross-examination, the witnesses could not declare that claimant would not be so exposed. The Board was free to credit claimant’s proof (see, Matter of Hawthorne v Peartrees, Inc., 56 AD2d 961, affd 43 NY2d 683), and such proof provides substantial evidence to support the Board’s decision.
Decision affirmed, with costs to the Workers’ Compensation Board. Mahoney, P. J., Kane, Casey, Yesawich, Jr., and Levine, JJ., concur.