Opinion
February 16, 1971
Appeal by the Special Disability Fund from a decision of the Workmen's Compensation Board determining that liability under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law had been established. Claimant, a marker, sustained a neck injury at her home on September 22, 1965. As a result, she wore a collar for several months and reported occasionally to the employer's medical clinic and eventually the condition cleared up. Then on July 15, 1966, while at work, claimant again injured her neck in avoiding some falling boxes. Compensability was established and a finding of permanent partial disability was ultimately made. On January 31, 1968, the carrier filed a claim for reimbursement under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law, based upon the previous impairment resulting from the September, 1965 injury. The board upheld the claim for reimbursement, determining that "Dr. Stern, representing the employer, had an informed knowledge of a preexisting permanent physical impairment prior to the accident of July 15, 1966 and that liability under Section 15-8 has been established." To sustain a claim under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law the impairment must be, in fact, permanent and the employer hire or continue 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; Matter of Ferry v. Jamestown Malleable Iron Div., 35 A.D.2d 870; Matter of Streit v. 303 Cherry St. Co., 32 A.D.2d 980.) The board's finding of "informed knowledge" is more stringent than the Bellucci requirement and thus the sole issue is the factual question of sufficient knowledge. In our opinion on the instant record there is substantial evidence in the testimony of Dr. Stern to support the board's determination and, accordingly, it must be affirmed. Decision affirmed, with costs to respondents filing briefs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.