Opinion
October 27, 1967
Appeal by a self-insured employer from a decision of the Workmen's Compensation Board denying appellant reimbursement from the Special Disability Fund (Workmen's Compensation Law, § 15, subd. 8). The sole issue raised here is whether there is substantial evidence to support the board's factual determination that appellant did not establish that claimant was hired or continued in employment with knowledge of the nature and extent of his prior disability and that such knowledge had a bearing on the decision regarding employment (e.g. Matter of Zyla v. Juilliard Co., 277 App. Div. 604). There is no question that claimant suffered prior disability, that the claimant's back condition was in fact permanent, that at least two of the medical reports in the record by Dr. Wilson specifically indicated permanency with respect to claimant's condition. The board, of course, was obviously in error in its finding in the decision that the medical reports of the prior back condition do not express an opinion as to its permanency. Moreover, one E.A. Pealer, whose duties among others for the employer involved the placing of disabled or handicapped employees on lighter duties, testified that well prior to January 3, 1962, the date of the injury in dispute, the employer had decided that claimant's condition was permanent "due to the many medical reports and x-ray reports referring to discogenic degenerative conditions" and had made efforts to assign claimant lighter work compatible with his condition. In those instances where disabilities openly manifest their permanent nature an employer can form a conclusion or belief that the condition is permanent without the need for medical reports ( Matter of Dubrow v. 40 West 33rd St. Realty Corp., 4 A.D.2d 896, 897). However, "There is no requirement that the employer have medical evidence or knowledge to a point of medical certainty as to the permanence of the injury." ( Matter of Dubrow v. 40 West 33rd St. Realty Corp., supra, p. 897.) The employer's decision must merely be premised on reasonable medical information indicating permanency ( Matter of Vance v. Ormsby, 6 A.D.2d 960), and not, for example, on the employer's own personal experience with such conditions ( Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908), or his belief that all such conditions are permanent ( Matter of La Count v. Kaufman, 23 A.D.2d 614). Moreover, there is no mandate that the doctors' reports expressly find permanency. Here, even disregarding the specific findings of Dr. Wilson, the medical reports clearly meet this test. All reports were specific on the nature of the disability. Dr. Wilson used such words as "chronic" and Dr. Harmon warned that the injury was likely to recur and used the word "degeneration", which even to a layman indicates permanency. Furthermore, the employer not only testified that it had determined the condition was permanent but unquestionably used its knowledge of claimant's condition in making work assignments. Therefore, while we are well aware of the factual nature of the board's determination ( Matter of Gilson v. Bickford, 12 A.D.2d 709), we can find no basis for rejecting the uncontradicted testimony as to the employer having made a determination of permanency or for an assumption that such was not generated by competent medical information and, accordingly, the board's decision must be reversed. Decision reversed, with costs to appellant against the Special Disability Fund, and matter remitted for further proceedings not inconsistent herewith. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.