Opinion
November 14, 1951.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
The award for death benefits is not questioned. The sole contention of the appellants is that subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law is applicable to the facts, and that the Special Disability Fund should be charged with liability for payment of the award in excess of 104 weeks. The board has found, and the finding is sustained by evidence, that decedent's death was the result of accidental injuries sustained by him on January 9, 1948, and that prior thereto the employer had no knowledge of decedent's existing latent physical impairment. Under such circumstances subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law does not apply, and the Special Disability Fund was properly discharged from liability. ( Matter of Zyla v. Juilliard Co., 277 App. Div. 604.) Knowledge of the employer subsequent to the accident which resulted in death is of no avail. Moreover, there is a lack of evidence that claimant was suffering from any permanent physical impairment prior to the accident involved here. ( Matter of Klein v. Ambrosino, 278 App. Div. 620.) Decision unanimously affirmed, with costs to the Workmen's Compensation Board.