Claim of Makowski v. Darling & Co. , 18 A.D.2d 1120 ( 1963 )

This is an appeal from a determination of the Workmen’s Compensation Board that the hernia condition of decedent employee was an occupationally caused hernia rather than an accidentally caused hernia. The real controversy in this case is whether the insurance carrier in 1958 or the appellant carrier which assumed the risk in 1959 is liable for the award. There is no controversy over the right of the claimant to death benefits. The evidence adduced showed that the rupture became progressively larger as time went on. There was medical testimony that the rupture could be considered as of a slowly developing nature and caused by decedent’s work. There is no direct testimony as to the date of the commencement of the initial rupture. The fact that there was some testimony concerning a specific incident did not require the board to classify such an event an accident when there was substantial evidence in the record to sustain a finding of occupational disease. This court does not weigh the evidence. The appellants further contend that the date of disablement was erroneous as found by the Referee. This issue was not contained in the application for review or argued before the board and accordingly is not properly part of this appeal. Decision and award of the Workmen’s Compensation Board unanimously affirmed, with one bill of costs against the appellants to be1 divided between the respondent carrier and the Workmen’s Compensation Board. Present — Bergan, P. J., Coon, Gibson, Herlihy and Taylor, JJ.