Claim of Roman v. Leviton Manufacturing Co.

Appeal from a decision of the Workmen’s Compensation Board. Claimant was employed as a porcelain cleaner. She was exposed to silicate dust. On August 26,1946, she left the employment because of ill health due to stomach ulcers. She returned the following month to have an X ray taken at the plant. This X ray seems to have been taken at claimant’s request and was given to claimant and later returned to the employer. The employer during this period took a number of X rays of employees and made statistical studies of them, but there is no proof that the employer knew of the specific technical reading of the X ray of this claimant. The X ray showed changes which would have been “ consistent with ” mild silicosis. The record does not, however, require a finding by the board that the employer actually had such knowledge of the X-ray interpretation to impose a duty under section 110 of the Workmen’s Compensation Law, to notify all interested parties and report to the board; and no such finding has been made. Claimant was in a hospital in September, 1946, and her condition was there diagnosed as tuberculosis and she was treated for this condition until 1949, but a diagnosis of silicosis was not made until 1950. The claim was filed March 2, 1950. This was over three years after she left the employment in August, 1946, and hence had her last exposure to silicate. The board held that the claim was barred under section 28 since it was not filed within two years. It held that the statute had not been waived. It is argued by claimant that the X ray taken in September, 1946, was an advance payment of compensation which stopped the running of the Statute of Limitations, but the statistical studies of employees for which it was to be used and other circumstances surrounding it did not require the board to find that it was such an advance payment of compensation. Decision unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Imrie and Zeller, JJ.