Opinion
June 19, 1967
The employer and its insurance carrier appeal from a decision of the Workmen's Compensation Board which discharged the Special Disability Fund from liability under the provisions of subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. The claimant was employed by the Evergreen Cemetery Association as a laborer in August, 1929, and in 1943 became superintendent of the employer's cemetery. As superintendent, he continued to perform the work of a laborer, but had the authority to hire and fire other laborers as the volume of work increased or decreased in the cemetery. During 1951, the claimant began to develop difficulty in walking, and consulted a physician concerning the pain he felt in his hips. The physician diagnosed his condition as osteoarthritis of the hips. He was hospitalized for treatment of his condition in November, 1956, and was rehospitalized in July, 1957, when he underwent surgery on the right hip. An employer's report of injury was filed on or about the 29th day of April, 1957. A decision of the Workmen's Compensation Board dated November 10, 1961 affirmed the award made to the claimant, and determined that the claimant's disability resulted from an occupational disease and fixed the date of disablement as July 7, 1957. The decision of the Workmen's Compensation Board was thereafter affirmed by this court. ( Matter of Smith v. Evergreen Cemetery Assoc., 19 A.D.2d 675.) Thereafter the carrier filed a claim for reimbursement from the Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law alleging that the claimant was continued in his employment after knowledge by the employer of a permanent pre-existing physical impairment. Appellants contend that the claimant must be considered as the alter ego of the employer corporation and that the employer, therefore, possessed the requisite knowledge under the statute of the claimant's physical impairment. In support of this contention, appellants assert that the claimant was the superintendent of the cemetery; that he resided in a house on the cemetery grounds; that he was in charge of the day to day running of the cemetery; and that he had the right to hire and fire certain employees, and executed and filed on behalf of the employer the original employer's report of injury herein. Appellants further argue that this is a dual-interest situation and that the claimant's own knowledge of his physical condition fulfills the requirement of the law that the employer continue the employee in his employment with knowledge of the permanent physical impairment. The case of Matter of Persky v. Stanley Persky Poultry Market, ( 2 A.D.2d 612), cited by the appellants, is distinguishable since in Persky, the claimant was president of the employer corporation, and all of the other officers of the corporation were members of his family and were aware for years prior to the injury involved, that he suffered from the disability which aggravated the effects of his injury. The claimant here was not an officer or director of the association and, although as superintendent he was delegated certain authority, the evidence falls far short of establishing that it was within the scope of the claimant's delegated authority to consider his own disability and determine on behalf of the corporation that he should be continued in his employment. Appellants further contend that the president of the Board of Directors of the Association was aware of the claimant's disability and, that despite this knowledge, he was continued in his employment. Although the testimony indicates that the president of the board knew that the claimant had difficulty in walking and was hospitalized for pain in his leg in 1956, there is no testimony or evidence that he knew or should have known, that the disability was of a permanent nature. A clear question of fact is presented by the record on the issues of knowledge and informed decision by the employer, and the record contains substantial evidence to support the board's findings and decision. ( Matter of Drews v. Blue Ribbon Fish Co., 23 A.D.2d 927; Matter of Eckhaus v. Adeck Store, Inc., 21 A.D.2d 707.) Decision affirmed, with costs to respondent Special Disability Fund. Herlihy, J.P., Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.