Claim of Leveski v. Dic Underhill Joint Venture

Mikoll, J. (dissenting).

I respectfully dissent. The board’s denial of claimant’s application for reopening was arbitrary and capricious. Claimant’s application was supported by a C-27 “change in condition” form signed by his treating physician. Thereon it is indicated that claimant is “totally” (emphasis added) disabled by reason of his silicosis condition. At the initial hearing, his doctor at the time found him to be only partially disabled from silicosis. Other experts indicated that there was no such pulmonary disability attributable to silicosis. The board adopted the latter view. The C-27 form now indicates that claimant’s condition.has significantly worsened since the date of the board’s decision closing the case and that claimant is now totally disabled because of his silicosis condition alone. On the basis of the present medical evidence submitted by claimant’s physician, claimant has arguably established that he now has two causes for his continuing total disability, his cardiac condition and his work-related silicosis condition. Under such circumstances, he is entitled to a hearing on his contention that his condition has changed and that he is now totally disabled due to both conditions which arguably are “two actively operating, concurring causes” for his total disability (Matter of Iodice v General Abrasive Co., 5 AD2d 707). The decision of the board should be reversed.