Opinion
December 23, 1966
Appeal by the Special Disability Fund from a board decision charging it with liability under the provisions of subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. Claimant, a laborer, sustained a back injury on July 16, 1959. Upon a pre-employment physical examination conducted in May of 1959, Dr. Eddy, the examining physician, noted in his report with respect to claimant's back, "Spine back, flexion off 15%." The report, however, did not indicate whether this condition was permanent and there is no evidence that Dr. Eddy made any other communication to the employer concerning the condition, that "Spine back, flexion off 15%" played any part in the decision to hire claimant or that claimant was put on any sort of light work. Dr. Eddy testified in 1963, that he considered the pre-existing condition was permanent in nature and that the 25% post-accident permanency was greater because of the preaccident condition, but he did not explain what the preaccident condition actually was beyond its symptomatology and admitted on cross-examination that claimant's restricted ability to move could be partially due to his general obesity. Thus the record is devoid of any evidence of a definable medical back condition and more importantly that the employer considered any such condition in deciding to hire the claimant, and thus the board's determination cannot stand ( Matter of La Count v. Kaufman, 23 A.D.2d 614; cf., Matter of Doroshenko v. General Motors Corp., 20 A.D.2d 744, mot. for lv. to app. den. 14 N.Y.2d 483). Decision reversed and claim remitted for further proceedings, with costs to Special Disability Fund against respondent employer and self-insured employer. Gibson, P.J., Herlihy, Reynolds and Staley, Jr., JJ., concur.