Opinion
March 1, 1972
Appeal from a decision of the Workmen's Compensation Board which reversed a Referee's determination and discharged the Special Disability Fund from liability for death benefits under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law. Decedent was employed as a taxi driver by the appellant for about eight years before his death. On January 4, 1968 for unexplained reasons, decedent's automobile left the highway and struck a tree. The board found that decedent's death was work-related and that it was caused by an acute coronary occlusion in combination with a crushed chest, both of which were competent producing causes of death. The issue is whether appellant continued decedent in his employment with good faith knowledge of the decedent's health impairment, a heart condition, and its permanency. (See Matter of Bellucci v. Tip Top Farms, 24 N.Y.2d 416. ) The evidence is contradictory and inconclusive. The issue of whether or not an employer had knowledge of an employee's permanent health impairment is a question of fact ( Matter of Sicker v. Spencer Son Corp., 30 A.D.2d 886), and the board's decision that appellant was not entitled to reimbursement from the Special Disability Fund is supported by substantial evidence. Decision affirmed, with costs to respondent Special Disability Fund. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.