Opinion
November 16, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board denying reimbursement from the Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. Claimant was employed as a chauffeur of a two-ton truck used in delivering floor scraping and polishing machines and hardwood flooring to customers of his employer in the metropolitan area of New York City. His work also entailed the loading and unloading of this heavy material and equipment. On August 20, 1955, while taking a sanding machine up a flight of stairs, claimant severely strained his back in the lumbosacral area. Aided by a supportive belt prescribed by a physician, he continued in his employment at the same wages but in a somewhat lighter capacity for a short interval. In December, 1955 his compensation claim was closed with the finding of no compensable lost time. In November, 1957 while again carrying the same type of machine up a gangplank, claimant reinjured his back and thereafter was operated for a ruptured intervertebral disc. After his first injury he was treated for short periods of time by two physicians and examined on behalf of the carrier on four occasions by an orthopedic specialist. From their submitted reports, fairly read, the board could have found that no permanent physical impairment resulted from the first occurrence and that only in retrospect was the pre-existing condition deemed to have been permanent. Claimant's initial back injury, without medical confirmation, was not the type which put the employer on notice of permanency as a hindrance to his continued employment. ( Matter of Gilson v. Bickford's, 12 A.D.2d 709.) As evidence of his employer's knowledge appellants rely on observations of claimant's handicapped physical condition between 1955 and 1957 made by the president of the corporate employer which the record indicates to have been three in number and on his opinion based on his "own knowledge and experience with back conditions" that he considered that claimant's condition would be permanent. Although in a history given the specialist of the carrier who re-examined him after the accident of November, 1957 claimant stated that he had no trouble with his back from March, 1956 until November 29, 1957, the employer ascribed his lack of complaints and the continuance of his employment to claimant's indifference to pain, dedication to his work and long-time association with his employer. Within the purview of the board's discretionary power, it could have regarded as unsubstantial testimony of this nature. ( Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908.) The record as a whole contains evidence to sustain the determination of the board. ( Matter of O'Shaughnessy v. Troy Eng. Co., 285 App. Div. 913; Matter of Zyla v. Juilliard Co., 277 App. Div. 604; Weinberger v. Zeibert Sons, supra; Matter of Gilson v. Bickford's, supra.) Determination of the Workmen's Compensation Board unanimously affirmed, with costs to the Special Disability Fund.