Opinion
October 24, 1967
Appeal by the Special Disability Fund from a decision of the Workmen's Compensation Board dated October 18, 1966 which found the respondent insurance carrier entitled to reimbursement. The claim for reimbursement was filed pursuant to subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law on the grounds that prior to an industrial accident the claimant had suffered from a permanent physical impairment which following the accident contributed to the disability and that the employer had knowledge of the pre-existing impairment before said accident. The appellant makes the following narrow contention in this court: "The finding of knowledge under Section 15, subdivision 8, is improper because it is based on the testimony of the claimant's physician rather than on the testimony of the employer." We perceive no limitation of proof in regard to the employer's knowledge other than the qualitative factor inherent in the requirement that the proof utilized constitute substantial evidence. Where a doctor has an opinion as to the physical condition of an employee and its permanency and has given such opinion to the employer who, as here, is unable to testify, such facts when accepted by the board constitute substantial evidence of the knowledge of the employer. In Matter of Tucci v. Carey Co. ( 15 A.D.2d 622), relied on by the appellant, we indicated that the knowledge purportedly imparted by the doctor to the employer might have been sufficient for the employer to form a belief of permanency. The doctor in that case had apparently not told the employer that the physical impairment was permanent in his opinion. It should be noted that in its application to the board for review of the Referee's decision, the only question presented to the board was whether or not the employer had knowledge of a pre-existing physical impairment. On that limited issue raised before the board and again here, we find that the doctor's testimony constitutes substantial evidence of knowledge on the part of the employer. Decision affirmed, with one bill of costs to respondents filing briefs herein. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.P.