Opinion
June 9, 1959
Present — Foster, P.J., Bergan, Gibson, Herlihy and Reynolds, JJ.
Appeal by an employer and his carrier from a decision of the Workmen's Compensation Board which denied a claim for reimbursement from the Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. Claimant, a bartender, had an award for her permanent partial disability resulting from a fracture of a lumbarvertebra and other injuries. The carrier's claim for reimbursement was predicated on a left-foot drop and other conditions resulting from poliomyelitis from which claimant suffered when four years old. The board's finding that prior to the accident claimant was not suffering from a pre-existing physical impairment within the meaning of subdivision 8 is supported by substantial evidence. By definition of the statute (§ 15, subd. 8, par. [b]), the impairment must be a condition "which is or is likely to be a hindrance or obstacle to employment." The carrier's examining physician reported "no previous history of any significant accidents or illnesses", "no significant abnormalities" and "no atrophy or weakness of the muscles of the lower extremities." The claimant walked at the request of the Referee who noted, without objection or disagreement on the part of counsel for appellants, that she seemed to walk normally; and he later remarked, with reference to her foot and leg, that he saw no defect whatsoever. The claimant herself testified that in her previous employment, with a bank, and before that as a beautician working on her feet, she never had any difficulty with her back, leg or foot, and that the condition of her leg or foot had never interfered with any of her activities. Decision unanimously affirmed, with costs to the respondent Fund against appellants.