Claim of Kuczkowski v. Bethlehem Steel Corp.

Kane, J. P., and Levine, J., dissent and vote to reverse in the following memorandum by Kane, J. P. Kane, J. P. (dissenting).

We are not persuaded that this record supports the board’s finding of an occupational disease. First, the record clearly demonstrates that the hernia and hydrocele required treatment over a long period of years. They were symptomatic during the period prior to the ultimate surgery in January, 1978. This court has said on prior occasions that compensation is not payable for the aggravation of a previously active condition (Matter of Webb v Western Elec. Co., 64 AD2d 744; Matter of Perez v Pearl-Wick Corp., 56 AD2d 239, 241). Moreover, there is no proof that the condition described as an occupational disease is related to claimant’s particular occupation as a normally expected, generally recognized hazard of his occupation (Matter of Detenbeck v General Motors Corp., 309 NY 558; Matter of Goldberg v 954 Marcy Corp., 276 NY 313). The decision should be reversed and the matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent herewith.