Claim of Oetting v. Chemical Bank

65 A.D.2d 642, 409 N.Y.S.2d 274, 1978 N.Y. App. Div. LEXIS 13361

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 12, 1978
• Status: Published

Opinion

Appeal from a decision of the Workers’ Compensation Board, filed November 30, 1977, and from an amended decision filed February 15, 1978. In its original decision of November 30, 1977 the board affirmed the referee’s decision absolving the Special Fund from liability on the ground that there was insufficient evidence in the record to support a finding that the employer knew that claimant had a permanent disability at the time of her hiring (Workers’ Compensation Law, § 15, subd 8). In an amended memorandum decision dated February 15, 1978, the board again affirmed and found that the employer lacked "a good faith belief of a previous permanent impairment within the meaning of the Workmen’s Compensation Law”, and, further, also found that the medical evidence established that claimant’s disability was solely related to her original accident, some 20 years prior to her employment. Thus, while we might be inclined to disagree with the board’s finding that the employer lacked knowledge of claimant’s disability at the time of the hiring, that fact being evident in the employer’s pre-employment physical examination record of claimant, we are constrained to affirm upon the board’s finding, based on competent medical evidence, that claimant’s disability caused by the second accident was not materially and substantially greater by reason of the pre-existing impairment (Workers’ Compensation Law, § 15, subd 8). Decisions affirmed, with costs to the Special Disability Fund against the employer and its insurance carrier. Mahoney, P. J., Sweeney, Larkin, Mikoll and Herlihy, JJ., concur.