Opinion
December 19, 1957
Present — Foster, P.J., Bergan, Coon, Halpern and Gibson, JJ.
Appeal by an employer and its insurance carrier from an award of compensation, which also discharged the Special Fund from liability under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law and found claimant permanently totally disabled. Claimant was employed as a building superintendent by the New York Hospital. He had two pre-existing physical ailments or physical conditions of which the employer was aware, a fractured right arm with stiffening and atrophy, and epilepsy. Subsequently it was discovered that he had a cardiac condition but there is no evidence in the record that the employer had knowledge of this condition prior to the happening of the accident. On March 15, 1953 claimant was bitten by a rat on his right index finger when he was attempting to clear a clogged sink. As a result of that accident he developed Haverhill fever which manifested itself in a subacute bacterial endocarditis and cerebral embolism, which adversely affected his heart and caused extensive brain damage. The board found him to be totally and permanently disabled. Reimbursement from the Special Disability Fund, under the provisions of subdivision 8 of section 15 of the statute, for all compensation and medical benefits beyond the 104 weeks' period, was denied to the carrier. The latter asserted as the basis for its claim for reimbursement that claimant had been hired as a disabled person. The board pointed out and found that claimant was totally and permanently disabled from the accident alone, and hence the pre-existing permanent impairment due to a fractured right arm and idiopathic seizures had not materially increased the disability resulting from the accident alone. This finding is supported by substantial evidence and hence appellant did not meet the test required by the statute. Award and decision unanimously affirmed, with costs to the Special Disability Fund against appellants.