Opinion
March 13, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Claimant, aged 65 years, had been employed as a carpenter for construction companies since 1924. In the mid and late Summer of 1959 while using the tools of his trade he experienced pain in his hands and detected that his right one "crumbled up" and opened with difficulty. On September 26, 1959 he consulted Dr. Graubard about his condition who upon examination found claimant to be afflicted in both hands with an occupational disease known as Dupuytren's contracture. On August 30 and September 6, 1959 claimant was employed by the appellant employer. During the same year he had previously worked for six intervening employers. Subsequently for a period of three days during late October and for one day early in November he performed carpentry work for another employer. On September 29, 1959 he filed formal claims for compensation against appellant and intervening employers in which he alleged the date of disablement due to the disease to be the date of the medical diagnosis. The Referee fixed September 26, 1959 as the date of disablement, found that bilateral Dupuytren's contracture had been established, made a schedule award for the loss of use of both hands and charged appellants with initial liability for its payment. The board in affirming his decision stated: "After review, the Board finds the Dupuytren's contracture results from the nature of claimant's employment, and that the employer herein is the employer who last employed claimant in the employment to the nature of which the disease was due and in which it was contracted." Appellants challenge the board's decision on the grounds that there is no substantial evidence to support the finding that claimant's condition was causally related to his employment by this employer, that it was not the last employer within the meaning of section 44 Work. Comp. of the Workmen's Compensation Law and that the claim is barred by the 12-month time limitation of section 40. The medical witnesses were in agreement that claimant had bilateral Dupuytren's contracture when he first sought medical attention. Dr. Graubard reported that claimant "has a causally related disability due to occupational exposure". He later testified: "This individual had an inherited predisposition and as a result of the occupational exposure with the constant minute trauma to the palms of both hands, he developed hemorrhages within the palmar fascia, which then accrue to form these ridges and masses in the palmar fascia, causing the flexion contractures noted in my report dated September 26, 1959." Doctor Lodico, appellants' consultant, who examined claimant on November 25, 1959 reported that "It is inconceivable that working for a period of a few days for any employer doing the work of a carpenter could have initiated this condition nor could have aggravated its course. The Dupuytrens present in both hands appears to be following the clinical and usual relentless course. In his present state however this patient has no disability and there is no reason why he could not indulge in his regular employment." He testified that "Nobody actually knows the cause of Dupuytren's contracture" and expressed the opinion "that those two days of work had absolutely nothing to do with the very old Dupuytren's contracture that this patient had in both hands". These divergent medical opinions created a question of fact as to whether the disease was contracted in claimant's employment which the board has resolved in favor of the claimant. We think that its finding of causal relationship rests upon substantial evidence. ( Matter of Rogan v. Charles F. Noyes, Inc., 10 A.D.2d 765, motion for leave to appeal denied 8 N.Y.2d 705; Matter of Reisinger v. Liebmann Breweries, 7 A.D.2d 658 and cases cited therein; Matter of McKiernan v. Schaefer Brewery Co., 5 A.D.2d 900.) Section 38 under which the basic liability for the payment of compensation for an occupational disease arises provides that the disablement of an employee resulting therefrom shall be treated as the happening of an accident within the meaning of the statute. Section 44 which establishes the rights and liabilities of employers as between themselves imposes primary liability for the total compensation recoverable in an occupational disease case on the employer who last employed the employee in the employment in the nature of which the disease was due and in which it was contracted with the right accorded such employer in a proper case to an apportionment of such compensation among prior employers. The date of the happening of an accident sets "in motion the machinery of compensation under the statute". ( Matter of McCann v. Walsh Constr. Co., 282 App. Div. 444, 447, affd. 306 N.Y. 904.) In our view the board correctly found that claimant was last employed by this employer in an occupation in which he was subject to the contraction of and actually did contract the disease and properly charged it with the initial responsibility for the award. It is argued that the occupational disease was not contracted within the 12 months previous to the date of disablement. (Workmen's Compensation Law, § 40.) This question was neither raised before the board nor passed upon by it. Appellants may not create this issue for the first time in this court. ( Matter of La Barge v. Mercy Gen. Hosp., 12 A.D.2d 689, 690 motion for leave to appeal denied 9 N.Y.2d 610; Matter of Braune v. Haas, 13 A.D.2d 875, 876.) Decision and award unanimously affirmed, with one bill of costs to be divided equally between the Workmen's Compensation Board and claimant, and disbursements to each.