Opinion
June 19, 1967
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board awarding claimant benefits for a permanent partial disability. In March of 1961 claimant, a sewing machine operator, developed a dermatitis on her hands. This condition spread to her wrists and arms and even to one eyelid. By November of 1961 the condition had generally subsided but in early 1963 it flared up again. Awards were made by a referee for various periods from April 4 to August 21, 1961 and for various periods in 1963 from all of which no appeals were taken. Thereafter a Referee's decision of February 27, 1964 awarding benefits for periods in late 1963 and early 1964 and continuing the case for one year for examination ostensibly to determine whether claimant's present dermatitis condition and resulting disability were causally related to employment factors was appealed to the board by the appellants on the grounds that there was not sufficient medical evidence that the dermatitis was work connected. The board affirmed the Referee holding "the claimant's dermatitis condition subsequent to August 6, 1963 is causally related to the employment" and no further appeal was taken from this determination. Finally further hearings were held which culminated in a Referee's finding of a "permanent moderate partial disability" causally related to employment. This decision was appealed to the board which affirmed and appellants then brought the instant appeal here on the grounds that there is insufficient proof of causal relation and of permanency. Initially we must note that we cannot agree with the board's assertion that because there was no appeal taken from the 1964 board affirmance, appellants have no right to raise the issue of causal relation here. While clearly a party will be bound by a board decision if he fails to appeal ( Matter of Carrero v. National Sugar Refining Co., 26 A.D.2d 872), appellants are only attacking continued causal relation subsequent to the periods covered by the 1964 decision (see Matter of Esbin v. Webb Knapp, 17 A.D.2d 1006). Nor do we find any merit in the board's assertion that appellants cannot raise the issue of permanency because they did not do so in their application for board review. While technically correct it is abundantly clear that appellants throughout have been using permanency and causation interchangeably and thus that they are not interjecting new issues which have not been preserved. As to the sufficiency of the medical evidence in support of the board's finding, appellants assert that the testimony of Dr. Merrick, the only physician supporting causal relationship, has no probative value because he would not find causal relationship with "medical certainty". Concededly, Dr. Merrick's testimony might well have been clearer. However, evaluating his testimony as a whole we cannot find that the board as a matter of law had to reject it ( Matter of Ernest v. Boggs Lake Estates, 12 N.Y.2d 414; Matter of Gordon v. Theodore Ficke, Inc., 15 A.D.2d 849; cf., Matter of Falconer v. Proto Tool Co., 19 A.D.2d 926). Dr. Merrick testified expressly that he saw no reason to change his prior position that claimant's condition was work-connected and the board was not required to construe his reluctance in ascribing medical certainty to his position as indicating that he himself did not find that work-connected causation existed. Nor does the fact that he admitted that X-ray dermatitis was also a factor necessarily conflict with his statement of causation as to the employment related contact dermatitis. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.