Opinion
June 29, 1961
Appeal by an employer and its insurance carrier from a decision of the Workmen's Compensation Board which discharged respondent Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law from liability, on the ground that the employer did not have knowledge of the supposed permanency of claimant's alleged physical impairment constituting a hindrance to employment. The impairment by reason of a back injury resulted from an accident of July 6, 1951 which occurred in the same employ. In connection with this injury claimant was seen by the plant physician at various times during the next 10 days and not thereafter. The second accident occurred on March 11, 1953 and caused additional injury to the back; and the disability since that date from a degenerated lumbar disc has been charged equally to both accidents. Reports dated November 26, 1951 and February 20, 1953 of an orthopedic consultant to whom claimant had been referred by his physician were received by the plant physician and placed in the personnel file pertaining to claimant. Appellants urge as the principal ground for holding the Special Fund liable their contention that these reports indicated a permanent defect and that their transmittal through the employer's plant physician to the employer's personnel files charged the employer with knowledge of such permanency. We find in neither report, however, any specific or conclusive finding of a permanent impairment and certainly no suggestion thereof sufficient to charge a lay mind with knowledge; and while it is true that in 1959 the plant physician, when asked "what is your opinion" as to permanency, on the basis of the two reports, said that claimant "was" permanently impaired, it is not at all clear whether he was testifying to a present opinion or to a conclusion reached prior to the second accident. If the former was the case, and perhaps in any event, the employer was not bound thus to construe the reports or to be charged with knowledge of a supposed permanent defect which certain of the other medical reports seem to deny and still others, and perhaps claimant's work record as well, tend to belie. Neither in this situation nor in the conflicting inferences from the evidence as to claimant's assignment to lighter work appears any basis for disturbing the board's interpretation of the evidence and its resultant factual determination. Decision affirmed, with costs to respondent Special Disability Fund. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.