46 A.D.2d 964 | N.Y. App. Div. | 1974
Appeal by the employer and its insurance carrier from a decision of the Workmen’s Compensation Board, filed February 14, 1974, which found causal connection between the claimant’s right leg phlebitis condition that caused a pulmonary infarction and disability and the nature of her employment so as to constitute an occupational disease. The board found as follows: “After review, a majority of the members of this Board Panel find that the claimant suffered occupational disease of phlebitis and pulmonary embolism due to the prolonged driving of 350 miles per day and the sitting in one position for lengthy periods which resulted in causally related total disability to August 11, 1972 and in causally related partial disability after that date.” Upon this appeal the appellants first contend that the record does not contain facts to support the hypothesis upon which the medical experts testified that there would be causal connection between the claimant’s occupation as an automobile driver and her phlebitis condition. To support this contention they rely upon facts not argued before the referee and the Workmen’s Compensation Board and it is apparent that, prior to this appeal, they did not dispute the claimant’s testimony that she would drive about 350 miles per day, five days per week, from 8:00 a.m. to 6:30 p.m. It is readily apparent that the reliance upon facts at the level of an appeal to the court which were not urged or raised in the administrative process cannot be condoned and perverts the legal process involved in these workmen’s compensation cases. The record contains substantial evidence supporting the board’s finding of a causal connection between the claimant’s occupation as an automobile driver and the condition of phlebitis. The appellants also contend that the phlebitis, as contracted in this case, cannot constitute an occupational disease as a matter of law. In Matter of D’Angelo v. Loft Gandy Corp. (33 A D 2d 1077, affd. no opn. 28 N Y 2d 573) this court, in three opinions, gave comprehensive consideration to the factors necessary to support a finding by the board of occupational disease. In the present ease, the medical evidence fully establishes that the condition of phlebitis is a hazard related to the distinctive feature of driving an automobile with the operator’s right leg being continually positioned in and about the area of an accelerator for long periods of time. Accordingly, the record contains substantial evidence to support the finding that phlebitis is an occupational disease related to employment requiring the driving of a vehicle for long periods of time. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Staley, Jr., Cooke, Sweeney and Reynolds, JJ., concur.
