Opinion
May 10, 1956
Present — Foster, P.J., Bergan, Halpern, Zeller and Gibson, JJ.
Appeal by the Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law from a decision and awards whereby claimant was awarded compensation for reduced earnings by reason of permanent partial disability and the Special Disability Fund charged for all compensation in excess of that for the first 104 weeks. Claimant was president of the employer corporation and the other officers were members of his family. All were aware that for many years prior to the accidental injury here involved claimant had suffered from diabetes mellitus. That condition has been found to have aggravated the effects of his injury, necessitating a partial amputation and causing permanent impairment of circulation. To be implied from the statute, designed to encourage the employment of handicapped persons, is the requirement of an "informed decision" by a present or prospective employer. ( Matter of Zyla v. Juilliard Co., 277 App. Div. 604, 606.) Appellant contends that the fact that the corporation was owned and managed by members of a family rendered that requirement impossible of fulfillment and that the statute was not intended to benefit such a corporation. In our view, there is nothing in the proof here which would warrant the distinction for which appellant contends, could such a distinction be made without doing violence to the clear language of the statute. Decision and award unanimously affirmed, with costs to the respondent-carrier.