John Bishop was employed as a packing clerk for a wholesale meat dealer. He was required to go in and out of a refrigerator from ten to thirty times a day. On June 30, 1936, he suddenly became ill. He had first noticed a cough which started in the spring of the year, and in the latter part of June he started to cough up blood. He then visited his doctor, who told him that he was suffering from tuberculosis. He filed a claim for disability compensation under the Workmen’s Compensation Law, stating that he was suffering from an occupational disease. The attending physician’s verified report stated that his work caused the activity of a Koch infection. There is an unverified medical report in the record stating that there is no relation between bis illness and bis occupation. That we must disregard in the face of the verified report.
The referee held that tuberculosis was not an occupational disease and disallowed the claim. The State Industrial Board denied an application to review this decision of the referee and stated that tuberculosis, to be covered as an occupational disease, must be peculiar and characteristic to the employment. This was in effect holding, as matter of law, that tuberculosis in this case was not an occupational disease within the meaning of the Workmen’s Compensation Law. The Board has found that the disease from which the claimant was suffering was not the result of an accidental injury or any of the occupational diseases within the meaning of the Workmen’s Compensation Law.
Article 3 of the Workmen’s Compensation Law deals generally with occupational diseases and the allowance of disability compensation and death benefits therefor. It contains section 39 of the law, which provides: “ Right to compensation. If an employee is disabled or dies and his disability or death is caused by one of the diseases mentioned in subdivision two of section three, and the disease is due to the nature of the corresponding employment as described in such subdivision in which such employee was engaged and was contracted therein, he or his dependents shall be entitled to compensation for his death or for the duration of his disablement in' accordance with the provisions of article two.” Section 40 in the same article reads in part: “ Neither the employee nor his dependents shall be entitled to compensation for disability or death resulting from disease unless the disease is due to the nature of his employment and contracted therein, or in a continuous employ*496ment similar to the one in which he was engaged at the time of his disablement, within the twelve months previous to the date of disablement, whether under one or more employers.”
Subdivision 2 of section 3 is found in article 1 of the law and, so far as here material, says:
“ 2. Occupational diseases. Compensation shall be payable for disabilities sustained or death incurred by an employee resulting from the following occupational diseases:
“ Column One Column Two
Description of Diseases Description of Process
* * * * * *
“ 28. Any and all occupational diseases.
28. Any and all employments enumerated in subdivision one of section three of this chapter.”
The statute thus creates two conditions precedent to the allowance of compensation for disability resulting from disease. First, the disease must be due to the nature of the employment, and, second, it must have been contracted therein. In other words, it must be due not only to the particular employment, but also to the nature of that employment. The disease should be one which is commonly associated with the occupation and which is acquired in the usual and ordinary course of employment in the particular occupation and is incidental thereto. It should be one of the usual results of the occupation as well as the actual result thereof.
The first twenty-seven paragraphs in subdivision 2 of section 3 enumerate certain diseases which are exclusively occupational and due to the nature of the employment in which they may be contracted. There are other diseases of the same type, of which cedar poisoning, alcohol poisoning, painter’s colic and pulmonary asbestosis are examples, the contraction of which is substantially confined to persons engaged in certain occupations. This second class is clearly included within the new paragraph 28. There is also another class of diseases, general in their nature, but which are more often contracted by persons in certain occupations, are reasonably to be anticipated as one of the results of such occupations and from the common experience of manldnd are known to be incidental thereto. Of this class the following may be used as examples.: hernia, caused by regular heavy lifting, tuberculosis developed from inhaling gases or dust, wrist drop from regular carrying of heavy loads and gradual loss of sight from gazing at powerful lights. This group is also within the purview of. paragraph 28 when due to the nature of a hazardous employment and contracted therein. *497Within this latter group comes the instant case, for the disease, tuberculosis, while general, was here due to the nature of the employment and contracted therein.
There is also another group of diseases, general in nature, which may in certain cases be contracted in a given hazardous employment, but are not due to the nature of that employment. These were not intended to be included within the added paragraph number 28.
I do not seriously differ with Judge McNamee as to his definition of an occupational disease or as to what was intended to be included within paragraph 28.
In Lerner v. Rump Bros. (241 N. Y. 153) Judge Pound, writing for the Court of Appeals, says: “ Death was due to disease. The disease was not an occupational disease, the natural and unavoidable result of the employment.”
The State Industrial Board has in effect held that because tuberculosis is a general disease, i. e., one to which all persons are exposed and which is contracted by persons in all walks of life it is not an occupational disease within the meaning of the statute. As I interpret the opinion of our presiding justice he holds that any disease which is contracted in the course of the employment and caused thereby is an occupational disease, regardless of whether it is one of the results of the nature of the employment. I do not differ with him as to whether such a result may be desirable. But we are limited by what the statute says.
The Board was not justified in disallowing the .claim at bar. We may not say as matter of law that there is no connection in the ordinary mind between tuberculosis and the bodily exposure incident to an occupation which requires the employee to go from one extreme of temperature to another as many as thirty times a day. If we were to draw upon our own experience we would say that such an occupation and its incidental exposures did ordinarily result in some form of pulmonary affliction. There was at least a question of fact here as to whether the disease was due to the nature of the employment for concededly it was contracted in the employment.
At the only hearing held in this matter before the referee the claimant was not represented by counsel and the referee after a few brief questions put to the claimant announced that it was not necessary to bring in doctors on the question of causal relation; that it was his understanding that the Board was holding that tuberculosis per se was not an occupational disease and that he would disallow the claim on that ground. Thus the claimant had *498no fair opportunity to present his case and more completely establish that his disease was both the result of the nature of his employment and contracted therein and the door was closed against him at the very outset.
The decision of the State Industrial Board should be reversed and the matter remitted to the Board for further action.