Opinion
November 4, 1960
Appeal from an award based upon an aggravation of a preexisting occupational disease claimed to be barred by section 40 Work. Comp. of the Workmen's Compensation Law, appellants claiming the disease was not contracted within one year from the date of disablement. The claimant had worked as a baker for 50 years, at least 5 for the appellant. He contracted bronchial asthma — "Baker's asthma" — many years prior to the date of disablement but for the preceding year it had been severe and "irretractable". The board found a pre-existing bronchial asthma and further that the exposure incurred in his last employment (employer herein) aggravated the condition and necessitated his ceasing work and which constituted an occupational disease. The testimony before the board justified such finding and was supported by substantial evidence. An aggravation under somewhat similar facts was held not barred by the time limitation in section 40. ( Matter of Mayr v. Price, 9 A.D.2d 801; see, also, Matter of Bichowsky v. Hickey Freeman Co., 11 A.D.2d 877.) Decision and award unanimously affirmed, with costs to Workmen's Compensation Board.
In decisions Nos. 1-96 the court is as follows: Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.