Opinion
November 16, 1961
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board based on a determination that claimant is unable to return to work as a baker because of susceptibility to dermatitis due to a sensitivity to bakery products, especially cinnamon. There is no dispute that claimant was entitled to compensation from June of 1958 to November of 1959. However, the only testimony in the record as to the claimant's continued sensitivity for the period subsequent to November 24, 1959 for which the board awarded claimant compensation for a permanent partial disability is that of appellants' expert, Dr. Sanger, who testified that claimant was desensitized and able to return to work. The fact that claimant's dermatitis was cured would not prevent the rendition of an award if the medical testimony evinced that claimant could not return to the work in which he contracted the disease and he was at work elsewhere at lower wages ( Matter of Adamsbaum v. Broadway Health Club, 271 App. Div. 576, motion for leave to appeal denied 297 N.Y. 1031; Matter of Andrias v. Ryan-Turecamo, 12 A.D.2d 534, motion for leave to appeal denied 9 N.Y.2d 609). Claimant, however, introduced no testimony to rebut Dr. Sanger's testimony and Dr. Ladany, claimant's expert, who examined claimant in February of 1959 conceded that it was possible to become desensitized. Thus, the evidence does not sustain the decision and award. Decision and award reversed and the matter remitted to the board, with costs to appellants against the Workmen's Compensation Board. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.