
    In the Matter of the Claim of John W. Ryciak, Respondent, v. Eastern Precision Resistor et al., Respondents. Workmen’s Compensation Board, Appellant.
    Argued October 3, 1962;
    decided November 1, 1962.
    
      Louis J. Lefkowitz, Attorney-General (Daniel PoXansky, Paxton Blair and Roy Wiedersum of counsel), for appellant.
    The date when claimant first received medical treatment for his occupational disease of dermatitis properly was fixed as the “ date of disablement ”, so as to impose liability upon respondents for all medical treatment rendered thereafter to claimant for his injury. (Matter of Schurick v. Bayer Co., 272 N. Y. 217; Matter of Mastrodonato v. Pfaudler Co., 307 N. Y. 592; Matter of Youngelman v. City of New York, 10 A D 2d 173, 9 N Y 2d 905; Matter of McCann v. Walsh Constr. Co., 282 App. Div. 444, 306 N. Y. 904; Matter of Reisinger v. Liebmann Breweries, 7 A D 2d 658; Matter of Cole v. Saranac Lake Gen. Hosp., 282 App. Div. 626; Matter of Stephenson v. Suffolk Sanatorium, 276 App. Div. 1044; Matter of Slawinski v. Williams & Co., 298 N. Y. 546; Matter of Yuras v. Union Table & Spring Co., 279 App. Div. 679; Matter of Davis v. Dexter Folder Co., 281 App. Div. 721; Matter of Esperson v. Gowanda State Hosp., 12 A D 2d 561; Matter of Commissioner of Taxation & Finance v. Nu-Art Adv. Co., 271 N. Y. 112; Matter of Harris v. Silver Cr. Precision Corp., 13 A D 2d 859; Matter of Muniak v. ACF Ind., 6 A D 2d 923, 7 A D 2d 258.)
    
      Morris N. Lissauer, Joseph M. Soviero and George J. Hayes for Eastern Precision Besistor and another, respondents.
    The order of the Appellate Division, reversing the finding of the Workmen’s Compensation Board as to the date of disablement, was in conformity with the existing decisional law and the only possible construction of the Workmen’s Compensation Law. A natural consequence of the absence of a correct date of disablement was the relieving of the employer and the insurance carrier from any liability for medical treatment rendered to claimant. (Matter of Muniak v. ACF Ind., 6 A D 2d 923, 7 A D 2d 258; Matter of Harris v. Silver Cr. Precision Corp., 13 A D 2d 859; Matter of Schurick v. Bayer Co., 272 N. Y. 217; Matter of Mastrodonato v. Pfaudler Co., 307 N. Y. 592; Matter of Hastings v. Hugh T. Beckwith, Inc., 4 A D 2d 714, 3 N Y 2d 975; Matter of Youngelman v. City of New York, 10 A D 2d 173, 9 N Y 2d 905; Matter of McCann v. Walsh Constr. Co., 282 App. Div. 444, 306 N. Y. 904; Matter of Reisinger v. Liebmann Breweries, 7 A D 2d 658 ; Matter of Oddi v. Cabaret Hurricane, 278 App. Div. 261; Matter of Stephenson v. Suffolk Sanatorium, 276 App. Div. 1044; Matter of Cole v. Saranac Lake Gen. Hosp., 282 App. Div. 626; Matter of Slawinski v. Williams & Co., 298 N. Y. 546.)
    No appearance for John W. Byciak, respondent.
    
      
      Abraham Markhoff for State Association of Trial Lawyers, amicus curias.
    
    I. The decision of the' Appellate Division, if affirmed, will impose a tremendous hardship and irreparable damage to thousands of injured claimants. II.- The present decision will impose hardship and expense upon innocent employers and insurance carriers. III. ■ The Appellate Division decision would promote fraud, deceit and chicanery. IV. Chaos would result in cases previously closed pending outcome of operations. V. The problem presented in this appeal is also of great concern to the medical profession.
   Chief Judge Desmond.

The'law question is this : may the Workmen’s Compensation Board fix as the “date of disablement ’ ’ for a sufferer from an occupational disease the date when he first received medical treatment and thus impose liability on the carrier for the cost of medical treatment after that date even when there is no loss of earnings, or must the ‘ ‘ date of disablement ” for such purposes be deferred until the workman actually loses time from work? The referee and the board held in favor of claimant but the Appellate Division, reversed so much of the board’s order as directed payment of medical expenses incurred prior to the date when loss of wages began.

Claimant contracted an occupational dermatitis while in this employer’s service and received his first medical treatment therefor on February 23, 1959 but continued to work until October, 1959. The board (confirming its referee) fixed the date of disablement as February 23, 1959. The Appellate Division, citing its earlier cases of Matter of Muniak v. ACF Ind. (6 A D 2d 923) and Matter of Harris v. Silver Cr. Precision Corp. (13 A D 2d 859), said that under the statute (Workmen’s Compensation Law, § 2, subd. 7; § 13, subd.. [a]; § 37, subd. 1; §§ 38, 39) the conclusion is unavoidable that no liability for medical expense accrues until there has been disablement from earning wages.

Appellant board argues that this ruling offends against justice and is against the public interest since it compels an occupational disease sufferer who wishes to keep on working to quit work (and collect more compensation) in order to get his medical bills paid. The Appellate Division seems to admit the injustice but says that the remedy lies with the Legislature, basing this conclusion on a reading of the statute which seems at variance with some of the court’s own earlier holdings (see Matter of Cole v. Saranac Lake Gen. Hosp., 282 App. Div. 626; Matter of Stephenson v. Suffolk Sanatorium, 276 App. Div. 1044, and Matter of Reisinger v. Liebmann Breweries, 7 A D 2d 658.)

As it seems to us, the board’s determination and award was not only in accord with the reasonable meaning of the statute but was compelled by a controlling decision, Matter of Slawinski v. Williams & Co. (298 N. Y. 546), and that we must reverse the Appellate Division. Slawinski’s hearing became impaired because of employment conditions but he continued to work without lost time or decrease in earnings. The board and the Appellate Division held (and this court approved) that, although he was-not “ economically ” or “ financially ” disabled, he was disabled in the sense of the statute because he was physically impaired. In Slawinski’s case the employer seems to have furnished the medical care, so liability therefor was not in dispute. But Slawinski demanded and Avas awarded some $1,700 as the “ schedule ” payments for his hearing loss although he lost no time or wages at all. In Slawinski the sole dissenter at the Appellate Division took, and the Appellate Division majority rejected, the same position taken by respondents here: that claimant although physically and occupationally impaired was not “ disabled ” because he lost no time or wages.

Our decision in Matter of Slawinski (supra), although without opinion, necessarily rejected the- statutory constructions approved by the Appellate Division in the present case, and meant as to an occupational disease claim that the employee’s right to compensation and the employer’s corresponding liability accrue no later than the date when the illness requires medical attention. The question in Slawinski was the very one now before us — that is, may the board in an occupational disease case fix a date of disablement as of the time of physical impairment or need of medical care and before any loss of wages? An affirmative answer should again be given. Quite recently in another connection we held (Matter of Mastrodonato v. Pfaudler Co., 307 N. Y. 592, 597, 598) that in a true “ accident ” situation physical or medical impairment ‘ ‘ reflected in medical care required ” is a “disability” in itself regardless of financial impairment.

The order appealed from should be reversed and the decision and award reinstated, with costs.

Judges Dye, Fuld, Fboessel, Van Voobhis, Burke and Fosteb concur.

Order reversed and the decision of the Workmen’s Compensation Board reinstated, with costs to appellant against respondents employer and carrier in this court and in the Appellate Division.  