Opinion
March 13, 1962
Appeal from a decision and award of the Workmen's Compensation Board. In this occupational disease claim an award charging medical expenses after April, 1955 has been made solely against appellant Evans Greenaway, Inc., and its carrier. Claimant while in this employment in 1955 suffered contact dermatitis attributed to exposure to cement. The previous year, August 26, 1954 while in the employ of respondent Arborio he suffered a contact dermatitis due to oil. Evans has contended that the dermatitis contracted while in its employ was a flare-up of the disease contracted the year before while claimant was in Arborio's employ, and that Arborio should at least be made responsible for part of the award. There is medical proof which the board was free to accept that the dermatitis contracted in appellant's employ was not related to the exposure in Arborio's employment; that claimant had entirely recovered from it. If this is true, as the board has found, an award would be proper solely against appellant. Appellant also argues that no disablement was shown because there was no loss of earnings resulting from the contact dermatitis. But this question was not raised by appellant; on the contrary appellant paid claimant's medical bills for a period of over three years. The failure to raise this question waives it. ( Matter of Hamilton v. Healy Co., 14 A.D.2d 364). Claimant has worked for several other employers after leaving appellant's employment. If these subsequent employments contributed to a continuing occupational disease, as appellants seem to argue, they may apply to the board for appropriate apportionment of any award or obligation to pay medical expenses which may result from the present decision of the board, on showing the effect of the subsequent employment on the occupational disease. But upon this record the attribution solely to the Evans Greenaway employment is sufficiently established as a matter of law. Decision finding appellants solely responsible for the continuing contact dermatitis affirmed, with costs to the Workmen's Compensation Board and respondent Arborio. Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur.