Opinion
October 27, 1966
Appeal by the employer and carrier from a decision of the Workmen's Compensation Board denying the carrier reimbursement under section 15 (subd. 8, par. [d]) of the Workmen's Compensation Law from the Special Disability Fund. Among other things, reimbursement under this statute requires that the employee must have been suffering a permanent physical impairment prior to a subsequent compensable accident and that the employer had knowledge of such disability, which knowledge had a bearing on the decision of employment. ( Matter of Zyla v. Juilliard Co., 277 App. Div. 604, 605; Matter of O'Shaughnessy v. Troy Eng. Co., 285 App. Div. 913.) The employer testified showing knowledge of a prior accident in 1953 which allegedly caused a concussion and shoulder injury to the plaintiff and also showing knowledge of an ulcer. There is no testimony by the employer in regard to an accident to claimant's head in 1954, and thus, the record would not support a finding of knowledge in regard to that accident. Further, he did not testify that the ulcer was considered by him to be an impairment in regard to employment. As to the 1953 accident, the medical reports of his attending physicians do not indicate a permanent disability to the head and/or shoulder and there is adequate medical testimony in the record to the effect that there was no permanent disability from this accident and that there was no evidence of any disability from the ulcer condition which contributed to the claimant's present disability. There was substantial evidence to support the decision of the board. Decision affirmed, with costs to Special Funds Conservation Committee. Gibson, P.J., Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.