| Matter of Grill v Fashion Inst. of Tech. |
| 2010 NY Slip Op 05647 [74 AD3d 1685] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ilona Grill, Respondent, v FashionInstitute of Technology et al., Appellants, and Special Disability Fund, Respondent. Workers'Compensation Board, Respondent. |
—[*1] Steven Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), forSpecial Disability Fund, respondent.
Peters, J. Appeals (1) from a decision of the Workers' Compensation Board, filed March 16,2009, which ruled that Workers' Compensation Law § 15 (8) (ee) did not apply toclaimant's award of workers' compensation benefits, and (2) from a decision of said Board, filedAugust 6, 2009, which denied the application of the employer and its third-party administratorfor full Board review.
Claimant suffers from interstitial pulmonary fibrosis and lung disease, which has beenestablished as a compensable occupational disease. The question thereafter arose as to whetherher condition constituted a dust disease that entitled the employer and its third-partyadministrator (hereinafter collectively referred to as the employer) to reimbursement from theSpecial Disability [*2]Fund (see Workers' CompensationLaw § 15 [8] [ee]). The Workers' Compensation Board determined that it did not and theemployer appeals.[FN*]
We affirm. Whether a condition constitutes a dust disease within the ambit of Workers'Compensation Law § 15 (8) (ee) depends "upon the pathological distinction betweenpneumoconiosis—i.e., diseases caused by the inhalation of dust particles which affect theparenchyma, or essential functioning aspects, of the lungs—and those diseases whichaffect the pleura, or lining, of the lungs" (Matter of Fama v P & M Sorbara, 29 AD3d 170, 172 n 1 [2006],lv dismissed 7 NY3d 783 [2006]; see Matter of Matott v St. Joe's Lead, 245AD2d 907, 908 [1997]). If a lung disorder arises from pneumoconiosis, it is properly viewed as adust disease (see Matter of Smith v Certain Teed Prods. Corp., 85 AD2d 820, 820-821[1981]; Matter of Viskovich v Keasbey Co., 36 AD2d 665, 666 [1971], lv denied29 NY2d 483 [1971]). Here, claimant's treating pulmonologist determined that she suffered frompneumonitis arising from her exposure to aerosolized paint, but did not find that she hadpneumoconiosis. As the Board was free to credit that opinion over the equivocal diagnosis ofpneumoconiosis rendered by another physician, we are satisfied that substantial evidencesupports its decision (see Matter of Lalla v Astoria A.C., 156 AD2d 808, 809-810[1989]; Matter of Roberts v Agway, Inc., 71 AD2d 733, 734 [1979]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decisions areaffirmed, without costs.
Footnote *: Inasmuch as the employer failsto raise any issue with respect to its separate appeal from the Board's denial of its application forfull Board review, we deem that appeal to have been abandoned (see Matter of LeFever v City of CortlandFire Dept., 66 AD3d 1061, 1062 n [2009], lv denied 13 NY3d 716 [2010]).