Opinion
February 16, 1971
Appeal from a decision of the Workmen's Compensation Board filed September 8, 1969, as amended by decision filed January 9, 1970, awarding claimant death benefits. The board found: "That the decedent was exposed to asbestos dust in his occupation and that due to such exposure he ingested asbestos dust resulting in development of malignancy of the colon which caused the death. It is therefore found that occupational disease is established for the malignant colon condition under Section 3, subd. 2, Paragraph 29, such condition resulting from the occupation and that liability under the provisions of Section 15, subd. 8 (ee) is not established." Appellants contend that the award should have been made under section 3 (subd. 2, par. 28) of the Workmen's Compensation Law, and that reimbursement from the Special Fund under section 15 (subd. 8, par. [ee]) is therefore proper. Paragraph 28 of subdivision 2 of section 3 Work. Comp. of the Workmen's Compensation Law provides for the payment of compensation for disability sustained or death incurred by an employee resulting from silicosis or other dust diseases resulting in total disability or death. That diseases caused by asbestos dust may come within the meaning of paragraph 28 is not in dispute. Respondent, however, contends that to bring a case within this paragraph it must additionally be established that there be a pneumoconiosis, "a chronic fibrous reaction in the lungs to the inhalation of dust" (Dorland's Illustrated Medical Dictionary [23 ed.]). We agree. "The dust diseases mentioned in paragraph 28 include only those in the pneumoconiosis group such as silicosis, anthracosis and siderosis" ( Matter of Nick v. Meyer Co., 26 A.D.2d 878, mot. for lv. to app. den. 19 N.Y.2d 579). Since pneumoconiosis was neither a direct cause of decedent's death nor a precipitant thereof, the discharge of the Special Fund was proper. Decision affirmed, with costs to the Special Disability Fund. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.