Claim of MacWilliams v. Conap, Inc.

56 A.D.2d 944, 392 N.Y.S.2d 506, 1977 N.Y. App. Div. LEXIS 11352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1977
• Status: Published

Opinion

dent. Appeal from a decision of the Workmen’s Compensation Board, filed July 2, 1975. The board has found that the employer "did not have proper knowledge” of a permanent physical disability (dermatitis) which pre-existed the claimant’s subsequent disability while working for the appellant employer to establish a right to reimbursement from the Special Disability Fund pursuant to subdivision 8 of section 15 of the Workmen’s Compensation Law (hereinafter Special Fund). The board’s factual findings recite that the employer’s representative testified that although he was aware of a preexisting condition, he "had no opinion as to whether or not it would go away”. A review of the testimony referred to by the board establishes that the employer had not formed any opinion as to the permanency of the preexisting condition and that by observing other employees he knew that the condition at times would clear up. The appellants had the burden of establishing "that the employer had either hired or continued in employment the claimant with knowledge of a pre-existing permanent physical impairment affecting his eligibility and a good faith belief in its permanency.” (Matter of Hendricks Toro Power House, 53 AD2d 761.) In this case there is no probative evidence that the employer believed the condition to be permanent giving due consideration to the express testimony that he had not formed any opinion and that he had seen similar conditions clear up on other employees. The appellants contend that the requirement of a good faith belief in permanency should be abandoned as a prerequisite to shifting liability to the Special Fund when the record establishes that the disability is in fact known to the employer and as in this case has been known to exist for several years. However, subdivision 8 of section 15 of the Workmen’s Compensation Law was enacted for the purpose of assisting in the employment of physically handicapped persons (Matter of Bellucci v Tip Top Farms, 24 NY2d 416, 419) and in the absence of any belief that a condition is permanent, there is no need for any assistance. Accordingly, the appellants have not demonstrated that the claimant’s disability was a hindrance to his employment or of any consideration therein. Under the circumstances, the appellants have not demonstrated any necessity for relaxing the requirement of a good faith belief that the pre-existing disability was permanent. Decision affirmed, with costs to the Special Disability Fund. Greenblott, J. P., Sweeney, Main, Larkin and Herlihy, JJ., concur.