Claim of Kalish v. Textile Presentation, Inc.

63 A.D.2d 1049, 405 N.Y.S.2d 827, 1978 N.Y. App. Div. LEXIS 12151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1978
• Status: Published

Opinion

Appeal from a decision of the Workmen’s Compensation Board, filed February 27, 1975, which discharged the Special Disability Fund from liability. Suffering from a pre-existing permanent partial disability, claimant, a 46-year-old executive, was involved in compensable accidents on May 4, 1962 and May 14, 1964. Subsequently, liability for his compensation award was apportioned by the board 75% to the 1964 accident and 25% to the 1962 accident, and the Special Disability Fund, under subdivision 8 of section 15 of the Workmen’s Compensation Law, was discharged from all responsibility. On this appeal, the employer and carrier involved in the 1964 accident challenge the discharge of the Special Disability Fund. We hold that the board’s decision must be affirmed. For the Special Fund to be liable, it must be shown that an employee disabled by a compensable accident had a prior permanent physical impairment and that he incurred a subsequent compensable disability caused by both conditions which was "materially and substantially greater than that which would have resulted from the subsequent injury * * * alone” (Workmen’s Compensation Law, § 15, subd 8, par [d]). Here, however, Dr. Francis B. Roth, an orthopedic surgeon who examined claimant on several occasions, testified that, following the second accident, he suffered from "no material and substantially greater disability than there was before his accident”. Such being the case, substantial evidence clearly supports the discharge of the Special Fund, and the board’s determination to that effect must be sustained. Decision affirmed, with costs to respondents filing briefs. Mahoney, P. J., Kane, Main, Larkin and Mikoll, JJ., concur.