Opinion
November 12, 1970
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed July 17, 1969, which denied reimbursement from the Special Disability Fund. On June 12, 1963 claimant, while working for Dibble Pontiac, Inc., sustained a compensable injury which the Workmen's Compensation Board found on December 28, 1965 to have caused a permanent partial disability. Claimant was employed by appellant in June, 1965 after a pre-employment physical examination which placed no restrictions on his employment. On November 25, 1965 claimant was apparently injured in an automobile accident which caused a sustained absence from work. On December 15, 1965 he presented himself to the company nurse who noticed a tilting of his head, and obtained the details of the prior accident at Dibble Pontiac. A report was made by the nurse to the Assistant Personnel Director of the employer who then consulted with Dr. Wettingfeld who had treated claimant for his injuries sustained in the automobile accident. The Assistant Personnel Director then made a note to the effect that claimant had a permanent disability by reason of the prior compensable accident. After discussion with his superior, the Assistant Personnel Director determined that claimant would continue to be employed despite this disability. On January 18, 1966, while working as a punch press operator for the employer, claimant sustained an injury to his left hand which resulted in the permanent loss of use of 70% of the left hand. An award of compensation was made for this injury, and the Referee determined that the carrier was entitled to reimbursement from the Special Fund, pursuant to subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. On appeal the board determined that "the employer had no informed judgment of a pre-existing permanent physical impairment within the meaning of section 15, subd. 8 of the Workmen's Compensation Law", and modified the Referee's decision to the extent of denying reimbursement to the carrier from the Special Fund. Subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law provides for reimbursement to an employer or its insurance carrier for benefits paid a claimant in excess of 104 weeks of disability when an employee having a permanent physical impairment incurs a subsequent disability by accident arising out of and in the course of his employment resulting in a permanent disability caused by both conditions that is materially and substantially greater than that which would have resulted from the subsequent injury alone. To sustain a claim under subdivision 8 of section 15 an employer must have sufficient prior knowledge of the nature and extent of the pre-existing impairment, including its permanency. ( Matter of Streit v. 303 Cherry St. Co., 32 A.D.2d 980.) "The policy of the statute and the rationale of the knowledge requirement are met, however, if the prior physical impairment is in fact permanent, and the employer hires or continues in employment a worker with knowledge of the impairment and a good faith belief of its permanency." ( Matter of Bellucci v. Tip Top Farms, 24 N.Y.2d 416, 420.) There is substantial evidence in this record to sustain a finding of knowledge of permanency by claimant's employer within the Bellucci rule. Accordingly, the decision of the board must be reversed, and the matter remitted to the board. (See Matter of Lawrence v. New York State Realty Term. Co., 35 A.D.2d 235.) Decision reversed, and matter remitted to the Workmen's Compensation Board for further proceedings not inconsistent herewith, with costs to appellants against the Special Disability Fund. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.