(specially concurring).
A. Disablement is primary factor.
The trial court found that plaintiff incurred an occupational disease when, while working as a painter, “he inhaled fumes from paint he was applying pursuant to employer’s instructions, causing him to develop a permanent allergic disorder to paint, severe and chronic bronchitis, kidney disorders, and chronic asthma.”
Plaintiff’s doctor, originally the doctor of the defendants, testified that “It’s not an allergy, it’s a paint reaction.” Plaintiff developed a reaction to paint from inhaling fumes from the paint used during the course of his employment. As a result of this “paint reaction”, plaintiff was disabled due to bronchitis, kidney disorders, and chronic asthma.
The words “allergy” and “disease” are not defined by statute. Neither were these words defined by the medical witnesses. The testimony on the meaning of “allergy” was a play on words. I don’t know whether a “paint reaction” is an allergy or a disease. I don’t know whether an allergy is a disease. I don’t know whether the trial court meant that the development of an allergic disorder to paint was an occupational disease. I don’t know whether plaintiff became disabled due to the “paint reaction”. But I do know that an occupational disease occurred when plaintiff became disabled by reason of bronchitis, kidney disorders and chronic asthma growing out of the “paint reaction”. What medical term envelopes the words “paint reaction” is immaterial.
Section 59-11-4(a), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) does define “disablement”.
(a) “Disablement” means total physical incapacity by reason of an occupational disease as defined in this act to perform any work for remuneration or profit in the pursuit in which he was engaged. . . .
Plaintiff had the right to compensation where the disablement was proximately caused by an occupational disease arising out of and in the course of his employment. Section 59-11-7, supra. Whether plaintiff had an “allergy” is immaterial, “if the particular conditions of employment in fact caused the disability.” 1A Larson’s Workmen’s Compensation Law, § 41.62 (1976).
The trial court found that plaintiff became disabled on September 14, 1973. Defendants do not challenge disability. Plaintiff is, therefore, entitled to compensation. Salazar v. Kaiser Steel Corporation, 85 N.M. 254, 511 P.2d 580 (Ct.App.1973).
B. Payment of claims may constitute an admission against interest.
On September 18, 1973, the employer notified Hartford that plaintiff was painting above a converter building and inhaled escaping gases and suffered dizziness from inhaling gases. Hartford’s doctor, who testified for plaintiff, also notified Hartford that plaintiff's injury arose from breathing fumes from red plastic paint. Thereafter, Hartford paid plaintiff temporary workmen’s compensation for a period of thirty weeks, from September 15, 1973 through April 12, 1974. This is an admission against interest which can be rebutted. Michael v. Bauman, 76 N.M. 225, 413 P.2d 888 (1966); Johnson v. J. S. & H. Construction Co., 81 N.M. 42, 462 P.2d 627 (Ct.App.1969). On June 20, 1973, Hartford received a final report from its doctor which stated that “Mr. Herrera cannot in any way work around paints, because of the allergies sustained to them both pulmonary and renal.”
Defendants offered no evidence to rebut the admission against interest which was sufficient to support an award of compensation.