Roettinger v. Great Atlantic & Pacific Tea Co.

• Decision Date: 26 July 1962
• Parties: Claim of Henry ROETTINGER, Claimant-Respondent, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Employer, and The Travelers Insurance Company, Insurance Carrier, Appellants, Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 903

230 N.Y.S.2d 903

17 A.D.2d 76

Claim of Henry ROETTINGER, Claimant-Respondent, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Employer, and The Travelers Insurance Company, Insurance Carrier Appellants, Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 26, 1962.

Terhune, Gibbons & Mulvehill, New York City (Urban S. Mulvehill and Gerard L. Peace, New York City, of counsel), for appellants.

Seymour M. Rowen, New York City, for claimant-respondent.

Louis J. Lefkowitz, Atty. Gen. (Roy Wiedersum and Sylvia Livingston, New York City, of counsel), for Workmen's Compensation Board.

Before BERGAN, P. J., and GIBSON, HERLIHY, REYNOLDS and TAYLOR, JJ.

GIBSON, Justice.

The employer and its carrier appeal from a decision and award of the Workmen's Compensation Board for disability due to upper respiratory disease resulting from claimant's exposure to cold in the course of his 15 years' employment by appellant employer as a butcher.

Claimant testified that he had no difficulty with his chest or with his breathing for many years after this employment commenced or until two or three years after he began to work some hours daily in the socalled icebox and that after the onset of his chest difficulties they gradually worsened over some years until he had an attack at home, after working that day, and was unable to work again.

Claimant's medical expert diagnosed chronic lung disease, the 'specific type' being 'that of pulmonary fibrosis, pulmonary emphysema, cystic lung disease', with chronic bronchitis and bronchospasm, resulting in permanent total disability due to pulmonary insufficiency; the doctor finding causal relation in that claimant's 'repeated exposures to the refrigerated air of the icebox, as well as to the cold air of the packing room, produced a state of more or less chronic bronchospasm'; which condition, in turn, produced infections, episodes of bronchopneumonia, of bronchitis and of lobar pneumonia; the infectious process, with its concomitants, then resulting in the pulmonary crippling which the doctor found. Causal relation was further emphasized by this physician's testimony that some seven months before his complete disablement, claimant, after two hours in the icebox, sustained a 'typical' bronchospastic episode 'clearly attributable' to his work in the icebox, this being followed by 'similar recurrent attacks' compelling him to leave his work for intervals of a few days or a week, and 'the long-term cumulative effect' being 'his present status' of disablement. The board was, of course, entitled to accept this opinion of causation and to reject such of the testimony of appellants' medical witnesses as was at variance with it. Although the physician who examined for appellants denied causal relation, some support for claimant's theory of causation may be found in the testimony of the other experts called by appellants. Thus, an impartial specialist, testifying as appellants' witness, after discussing the general or popular contention that exposure to chill may precipitate a respiratory illness, said that 'the clinical impression is that it may be so, but we have no scientific proof'; that 'we are willing to say that it is possible that it may have had an effect'; which he would, however, consider of 'minor degree'. Another expert, called by appellants, said that 'infection plays a very strong etiologic role here * * * I think to a large extent these patients suffer from repeated infections and that is the cause of their disease'; and, significantly, that one 'can get an infection from exposure to could such as going into the icebox'.

Upon what seem to us the unwarranted conclusions that claimant's medical theory of causation was the aggravation of a pre-existing condition of emphysema and that the board found aggravation and predicated the award upon it, appellants rely solely upon Matter of Ashley v. Mardon Operating Corp. (9 A.D.2d 826, 192 N.Y.S.2d 927). In that case, we merely stated the familiar rule that 'the aggravation of a condition which is not occupational in nature, cannot be considered an occupational disease' and found that there was no proof in the record that emphysema was a common hazard of or a natural incident to the employment of a general manager of a taxicab company whose work involved dispatching drivers, collecting their cash receipts and keeping records. As rather clearly appears from the medical evidence hereinbefore quoted, the causation in the case now before us was direct and not by way of aggravation and we do not construe the board's decision as proceeding upon any other basis. Indeed, we find no evidence that any disease pre-existed claimant's first symptoms of chest difficulty (these some two or three years after he commenced working in the icebox) and appellants refer us to no evidence thereof, and, in fact, to nothing more than an inconclusive colloquy between claimant's attorney and a member of the board panel.

The regular exposure to temperature extremes was certainly a 'distinctive feature of the claimant's job, common to all jobs of that sort' and the medical evidence made abundantly clear the 'recognizable link' between it and the disease (Matter of Harman v. Republic Aviation Corp., 298 N.Y. 285, 288, 82 N.E.2d 785, 786); and the board could find upon equally strong evidence an inference therefrom that the 'conditions' of claimant's long, regular and frequent exposures, while at work in the icebox and packing room, were those 'to which all employees of [his] class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general.' (Matter of Goldberg v. 954 Marcy Corp., 276 N.Y. 313, 319, 12 N.E.2d 311, 313.) These rules, as enunciated in Goldberg and in Harman, were restated in Matter of Detenbeck v. General Motors Corp., 309 N.Y. 558, 560-561, 132 N.E.2d 840, which otherwise seems to us not in point, being, like Ashley (supra), an aggravation case, in which the Court found that the 'condition in claimant's case was due to a congenital defect of the spine' (309 N.Y. p. 560, 132 N.E.2d p. 841); that 'the work in which he was engaged simply amounted to the ordinary wear and tear of life impinging on the infirmity with which [he] had been born' (p. 561, 132 N.E.2d p. 842); and that the test of occupational disease (that of 'a recognizable link between the disease and some distinctive feature of the claimant's job') 'is not met where disability is caused by an aggravation of a condition which is not occupational in nature' (p. 562, 132 N.E.2d p. 843). We must similarly distinguish as cases of aggravation, in which there was no proof that the pre-existing ailments were 'occupational in nature', the decisions in Matter of Conroy v. Rupert Fish Co., 8 A.D.2d 553, 183 N.Y.S.2d 332, in which the absence of proof relating pre-existing quiescent tuberculosis to the occupation generally, required us to remit, and Matter of Smith v. Sports Room Supper Club, 7 A.D.2d 809, 181 N.Y.S.2d 130, which was also remitted to permit of additional medical proof. Neither do we consider decisive the fact, if such it is, that people in all walks of life are subject to the pulmonary disorders here found. "The conditions of employment which distinguish the occupational disease from the ordinary diseases of life' are sufficiently distinctive if 'familiar harmful elements are present in excessive degree.' (1 Larson on Workmen's Compensation Law, § 41.50.)' (Matter of Wildermuth v. B. P. O. Elks Club, 5 A.D.2d 911, 170 N.Y.S.2d 874, motion for leave to appeal denied 4 N.Y.2d 677, 174 N.Y.S.2d 1025, 150 N.E.2d 774, involving disability from varicose veins; and see Matter of Elkin v. D. & J. Cleaners, Inc., 14 A.D.2d 402, 221 N.Y.S.2d 153, appeal dism. 11 N.Y.2d 885, 227 N.Y.S.2d 922, 182 N.E.2d 410.) Conversely, the fact that 'the disease is uncommon does not necessarily remove the question from the board's domain of fact, as was held in [Matter of] Preusser v. Allegheny Ludlum Steel Corp., 4 A.D.2d 727, 163 N.Y.S.2d 524, affirmed 4 N.Y.2d 773, 172 N.Y.S.2d 823, in which the employer argued unsuccessfully that the disease was not occupational because there was no proof that the harmful exposure would be injurious to the average workman.' (Matter of Moore v. Ford Motor Co., 9 A.D.2d 165, 167, 192 N.Y.S.2d 568, 570.) In still another factual situation, it was held that Dupuytren's contracture, common enough in some few employments, could be linked to yet another occupation--that of electrician--on the basis that the work 'involved heavy use of the hands' and this without proof of the incidence of the disease among electricians generally. (Matter of White v. Iroquois Gas Corp., 11 A.D.2d 572, 200 N.Y.S.2d 497, affd. 10 N.Y.2d 869, 223 N.Y.S.2d 501, 179 N.E.2d 506; and see Matter of Sheehy v. Doyle, 8 A.D.2d 267, 187 N.Y.S.2d 584, motion for leave to appeal denied 7 N.Y.2d 706, 193 N.Y.S.2d 1027, 162 N.E.2d 754, involving a laborer employed by a city transit system.)

Pulmonary tuberculosis caused by repeated exposure to cold in a meat market was held to be an occupational disease in Matter of Bishop v. Comer & Pollock, Inc., 251 App.Div. 492, 297 N.Y.S. 946, which involved direct causation and thus is not necessarily bereft of authority as pre-dating the Detenbeck case (309 N.Y. 558, 132 N.E.2d 840, supra), dealing with aggravation. Further, interestingly enough, the decision in Bishop was concurrent with the Appellate Division's decision of the Goldberg case (251 App.Div. 904, 297 N.Y.S. 960), which was subsequently affirmed in the Court of Appeals upon the ground of accident (276 N.Y. 313, 12 N.E.2d 311, supra) and which was, as above noted, later cited and approved in Detenbeck. It has been held too that pulmonary disease contracted...