Opinion
October 24, 1967
Appeal by the Special Disability Fund from a decision of the Workmen's Compensation Board dated January 25, 1967 which found the respondent insurance carrier entitled to reimbursement. The carrier's claim for reimbursement was filed pursuant to subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law on the ground that the decedent's death "would not have occurred except for such pre-existing permanent physical impairment" (Workmen's Compensation Law, § 15, subd. 8, par. [e]). In this instance the employee's pre-existing impairment consisted of the absence of his left hand. He was stabbed by a fellow employee and died shortly thereafter. In essence, the carrier claims that the absence of the employee's left hand contributed to his death in that he was unable to properly defend himself against his co-worker's attack. In order to make a determination that the carrier be entitled to reimbursement, it must be established that the pre-existing physical impairment must have been an essential factor in causing the death. ( Matter of Roberts v. Star Woolen Co., 283 App. Div. 1122.) Moreover, the statute (Workmen's Compensation Law, § 15, subd. 8, par. [e]) provides that "If * * * it shall be determined * * * death would not have occurred except for such pre-existing permanent physical impairment, the * * * carrier * * * shall be reimbursed from the special disability fund". There is no evidence in the record to indicate that "death would not have occurred except for" the loss of his left hand. The eyewitnesses to the altercation which the carrier stated it would produce were never called and the record is devoid of any evidence that death was in any way occasioned, caused or contributed to by the absence of the left hand, notwithstanding the purely and highly speculative statement made by the pathologist, which we cannot accept. The determination of the board is not supported by the evidence, much less substantial evidence. Decision reversed, with costs to the appellant against respondents, employer and insurance carrier, and matter remitted to the Workmen's Compensation Board for further proceedings not inconsistent herewith. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.