Opinion
June 16, 1955.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Coon, Halpern, Imrie and Zeller, JJ.
The sole issue upon this appeal is whether the employer and its insurance carrier are entitled, under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law, to reimbursement from the Special Disability Fund for all compensation and medical benefits subsequent to those payable for the first 104 weeks of disability. That section provides for the assumption of liability for payments of compensation after 104 weeks of disability out of the Special Fund created by such section where a person suffering from a prior permanent physical impairment incurs a subsequent disability by an accident, arising out of and in the course of employment or an occupational disease, which results in a permanent disability, caused by both conditions, that is materially and substantially greater than that which would result from the second injury or occupational disease alone. On May 4, 1945, claimant suffered what appeared to be a trivial injury to his shoulder in an industrial accident. By the later part of June, however, the doctor's report indicated that degenerative arthritis was the cause of the prolongation of claimant's symptoms. When he returned to his work the first week in July, his arm became so much worse he had to leave. The report of August 1, 1945, described the sprain as "Severe" and stated that claimant "May have some permanency to left shoulder." On September 13, 1945, the doctor reported a "marked loss of all normal movements of left arm at shoulder joint." When claimant again returned to work, he was given a different job in which there was less likelihood of his having to do continuous heavy labor, but the employer's superintendent did not know that any permanent disability was involved. Claimant continued to work on this job until December 23, 1945, when he sustained a second industrial accident, injuring both knees and legs. On December 3, 1946, separate decisions were rendered by the board granting a schedule award to claimant for 25% loss of use of his left arm caused by the accident of May 4, 1945, and a further schedule award of 15% loss of use of the left leg and 10% loss of use of the right leg caused by the second accident on December 23, 1945. The awards were paid and both cases closed. On November 10, 1951, claimant made application to reopen the second accident case, claiming that the condition of his knees had grown progressively worse to the extent that he was totally disabled. Upon further consideration of the case, the Referee found that claimant was entitled to an award for permanent total disability, and that the insurance carrier was entitled to reimbursement under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. The board modified the Referee's decision by striking out the provision imposing liability upon the Special Disability Fund and holding that the provisions of subdivision 8 of section 15 were inapplicable. We believe that there is substantial evidence to support this finding of the board. The record is clear that the employer knew that claimant could not do his regular work following the first accident, but there is no proof of knowledge on the part of the employer that prior to the second accident, the first injury had resulted in a permanent condition. ( Matter of Zyla v. Juilliard Co., 277 App. Div. 604.) Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.