IN RE: the Claim of Susan MORGAN

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Susan MORGAN, Appellant, v. OLEAN CITY SCHOOL DISTRICT, Respondent. Workers' Compensation Board, Respondent.

Decided: March 14, 2002

Before:  CARDONA, P.J., MERCURE, CREW III, MUGGLIN and LAHTINEN, JJ. Lewis & Lewis P.C., Jamestown (George Panebianco of counsel), for appellant. Hamberger & Weiss, Buffalo (David F. Davis of counsel), for Olean City School District, respondent.

Appeal from a decision of the Workers' Compensation Board, filed May 16, 2000, which ruled that claimant had not developed an occupational disease and denied her claim for workers' compensation benefits.

Claimant, a teacher, alleges that she was regularly exposed to toxic fumes, including chlorine gas, when cleaning agents were improperly mixed in the restrooms adjacent to her classroom.   Claiming that the exposure caused her to develop respiratory problems and chemical sensitivities, she filed a claim for workers' compensation benefits.   The Workers' Compensation Board concluded that claimant had not developed an occupational disease and denied her claim for workers' compensation benefits, prompting this appeal by claimant.

Inasmuch as claimant's condition did not arise from the general nature of her employment but was claimed to be the result of a condition specific to the particular room in which she taught, the Board properly concluded that claimant's evidence was insufficient to establish an occupational disease (see, Matter of Leventer v. Yeshiva of Flatbush, 257 A.D.2d 903, 684 N.Y.S.2d 658).   Nevertheless, the Board's decision must be reversed.   In her application for Board review, claimant argued that she had sustained a compensable accidental injury and the Board failed to address the issue which, in these circumstances, should have been addressed (see, id.).

ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.

MERCURE, J.

CARDONA, P.J., CREW III, MUGGLIN and LAHTINEN, JJ., concur.

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