Claim of Hooper v. Bethlehem Steel Co. , 15 A.D.2d 145 ( 1961 )

Bergan, P. J.

Claimant had a recurrent bilateral hernia in July, 1945 which an examining physician for the self-insured employer described in his report as ‘ occupational ’ ’, and which the employer’s report to the Workmen’s Compensation Board described in the same way.

A hearing was held August 28, 1945; the employer did not controvert the claim and the Referee found that claimant suffered an occupational hernia. Claimant had lost no wages; no finding of disablement was then made; and the case was closed by the Referee pending operation “if and when the claimant desires it

Almost 15 years later claimant applied to reopen his case upon the statement he then wanted an operation for the hernia. It is clear he had suffered no diminution of wages due to the condition in the intervening period.

Two operations were performed, the first on March 9, 1960; the second on April 13,1960. The board has found that the date of the first operation, March 9, 1960, was the date of disablement. This finding is in exact conformity with the statutory definition of “disablement” for occupational disease. “Disablement” is treated under the statute as the happening of an accident in an occupational disease claim (Workmen’s Compensation Law, § 38) and “ injury ” means “accidental injury ” (§2, subd. 7). The reason for this policy is very clear: many industrial employees suffer diseases of more or less gravity due to occupation, but continue work. A disease, unlike an accident due to an event particularized in time and place, often does not manifest itself until some external event occurs; and to avoid endless disputes about its time of occurrence, the statute provides that disablement is the ‘ ‘ state of being disabled from earning full wages ” (§37, subd. 1). Moreover, even if a disease is established and known, the statutory definition as a matter of legislative policy must prevail; it is not equated to an accident until there is a wage loss.

A claimant does not become disabled, i.e., the “ accidental injury ” equated by the statute to “disablement”, does not happen until the day he suffers some diminution of wages which may be later or never. The rule that the statute in this definition is to be followed literally is very well settled in this court. (Matter of Muniak v. ACF Ind., 6 A D 2d 923, affd. on reargument 7 A D 2d 258; Matter of Taratino v. Em Cee Fashions, 9 A D 2d 810; Matter of Gelband v. Queen Mary Bag & Luggage Shops, 11 A D 2d 571; Matter of Harris v. Silver Greek Precision Corp., 13 A D 2d 859.)

The board has found, since the “ disablement ” did not occur until claimant underwent his first operation for the disease on March 9, 1960, because there was until then no diminution of wages, that this was the ‘ ‘ date of the injury ’ ’ within the language of section 25-a and that therefore the employer and not the Special Fund for Reopened Cases was responsible for the resulting compensation claim.

On the statutory language itself this seems a consistent resolution of the issue. If, as section 38 says, disablement is treated as the happening of an accident; and if, as the definition of section 2 provides, an injury means an ‘ ‘ accidental injury ’ ’, it seems clear that “ date of the injury ” in section 25-a means, when it comes to an occupational disease case, the date the claimant first suffers some diminution of wages due to the disease.

The contextual words of section 25-a ‘ ‘ and claim for compensation previously has been disallowed or claim has been otherwise disposed of without an award of compensation” are not words to be read in a vacuum. They are tied exactly into a date; and that date is the “ date of the injury ” which, of course, can mean only accidental injury and in occupational disease its equivalent, a diminution of wages.

It is clear, too, that the claim could not have been “ allowed ” or disposed of with “ an award of compensation” until there had been a diminution of wages, and, therefore, the rest of the contextual clauses of section 25-a “claim for compensation previously has been disallowed or claim has been otherwise disposed of without an award of compensation ’ ’ are irrelevant to an occupational disease claim which has yet not matured into a right to compensation.

As the court noted in Matter of McCann v. Walsh Constr. Co. (282 App. Div. 444, 448, affd. 306 N. Y. 904) when the disablement occurs “ the claim then accrues for the first time”.

The statutory definition ought not be further fragmented to find a difference in time of maturity of a claim for occupational disease between the phrase “ date of the injury ” in section 25-a, and the date of accident under section 38. The Legislature could not have intended such a distinction which would cause further confusion and litigation.

The general policy to treat the actual diminution of wages as the occurrence of the accident and its consequent injury ought to be applied for all purposes alike and an exception should not be carved out for the words “ date of the injury ” in section 25-a. To apply the same definition of time of accrual of a claim for occupational disease for all such purposes is the sense in which our discussion in Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works (2 A D 2d 946) ought to be read.

The decision of the Workmen’s Compensation Board should be affirmed, with costs to the Special Fund for Reopened Cases.