IN RE: the Claim of Owen MATOTT

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

IN RE: the Claim of Owen MATOTT, Appellant, v. ST. JOE'S LEAD et al., Respondents. Workers' Compensation Board, Respondent.

Decided: December 24, 1997

Before CARDONA, P.J., and CREW, WHITE, PETERS and SPAIN, JJ. Oot & Stratton (Michael P. Oot, of counsel), Dewitt, for appellant. Whyland & Richmond (Christopher M. Whyland, of counsel), North Syracuse, for St. Joe's Lead and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed June 19, 1995, which ruled that claimant was not entitled to workers' compensation benefits for a partial disability resulting from exposure to harmful dust.

Claimant was employed as a miner by the self-insured employer, a mining company, from 1949 until he retired in 1974 due to chest pains and shortness of breath.   In 1991, he filed a claim for workers' compensation benefits based upon an occupational lung disease which he alleged was due to exposure to dust, fumes and oil during his employment with the employer.   The case was established for occupational disease, notice and causal relation for a permanent partial disability of the lungs.   The Workers' Compensation Board reversed this decision and disallowed the claim, finding that claimant was not entitled to benefits for a partial disability resulting from exposure to harmful dust which occurred prior to July 1, 1974 1 (see, Matter of Vore v. Allied Bendix Corp., 204 A.D.2d 761, 611 N.Y.S.2d 681, lv. denied 84 N.Y.2d 811, 622 N.Y.S.2d 913, 647 N.E.2d 119).   Claimant contends that the Board's decision was erroneous because he had a claim for an occupational disease (see, Workers' Compensation Law § 3[2] [column one] [30] ), not a dust disease, and that the former provisions of the Workers' Compensation Law which excluded claimants with a partial disability due to dust disease from receiving benefits were not applicable.   We agree.

Although the Workers' Compensation Law does not define “dust disease”, case law has held that the term refers to diseases of the lungs classified as pneumoconiosis (e.g., silicosis, chalicosis, anthracosis [caused by exposure to coal dust] or siderosis [caused by exposure to iron and steel dust] ) (see, Matter of Roberts v. Agway Inc., 71 A.D.2d 733, 734, 419 N.Y.S.2d 767;  Matter of Lawton v. Port of New York Auth., 276 App.Div. 81, 92 N.Y.S.2d 714).   Here, the record contains no proof that claimant's disability was due to a disease in the pneumoconiosis classification (see, Matter of Lawton v. Port of New York Auth., supra ).   Rather, the medical experts who testified for both parties essentially agreed that claimant suffers from chronic bronchitis.   Significantly, the expert for the employer specifically found no evidence of pneumoconiosis.   In its decision, the Board did not take issue with the Workers' Compensation Law Judge's conclusion on the issues of causal relation or the finding that claimant suffered from a permanent partial disability.   It disallowed the claim on the ground that claimant suffered from a partial disability based upon a “dust disease” that occurred prior to July 1, 1974 and was therefore excluded from coverage by Workers' Compensation Law former § 39.   Because the record does not support a finding that claimant suffers from a “dust disease”, we must conclude that the Board erred in denying benefits on this ground alone.   Accordingly, we reverse and remit the matter to the Board for further proceedings.

ORDERED that the decision is reversed, with costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this court's decision.

FOOTNOTES

1.   Prior to July 1, 1974, the Workers' Compensation Law provided that an employee who was engaged in hazardous employment who became disabled due to dust disease was entitled to workers' compensation benefits only if he or she was totally disabled (see, Workers' Compensation Law § 3 [former (2) ];  § 39;  Matter of Blair v. Bendix Corp., 85 N.Y.2d 834, 835, 623 N.Y.S.2d 841, 647 N.E.2d 1349).   The law was changed effective July 1, 1974 to extend coverage to those employees with partial disabilities resulting from dust disease, so long as exposure to the harmful dust occurred during at least six months in New York employment after July 1, 1974 (L.1974, ch. 577;  see, Executive Dept. Mem, 1974 McKinney's Session Laws of N.Y., at 2017-2018).

MEMORANDUM DECISION.

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