Opinion
December 20, 1961
Appeal by an employer and its insurance carrier from a decision of the Workmen's Compensation Board, the sole issue arising upon appellants' contention that the board erred as a matter of law in finding the date of claimant's disablement from occupational dermatitis to be February 23, 1959 — the date of his first medical treatment — despite the fact that there was no compensable lost time prior to October 1, 1959. There has been no award for disability and appellant carrier has declined to pay bills for medical treatment, asserting that it cannot become liable therefor prior to claimant's becoming "disabled from earning full wages" (Workmen's Compensation Law, § 37, subd. 1), since, in the case of occupational disease, "disablement" as thus constituted is treated as the happening of an "accident" for purposes of compensation (Workmen's Compensation Law, §§ 38, 39) and treatment may not precede accident (see, also, Workmen's Compensation Law, § 2, subd. 7). The decision must be reversed upon the authority of Matter of Harris v. Silvercreek Precision Corp. ( 13 A.D.2d 859) and Matter of Muniak v. ACF Industries ( 6 A.D.2d 923, affd. on rearg. 7 A.D.2d 258). If injustice results from the application of the provision for prompt medical treatment (Workmen's Compensation Law, § 13, subd. [a]) differing as between accidental injury and occupational disease, the remedy lies with the Legislature, as the present result seems to us to be unavoidable when the applicable statutory provisions are read together. (See Workmen's Compensation Law, § 2, subd. 7, § 13, subd. [a], §§ 37-39.) The decision so far as it requires payment of medical expenses incurred prior to the time of any wage loss is reversed, and matter remitted to the Workmen's Compensation Board, with costs to appellants against the Workmen's Compensation Board. Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.