Opinion
November 22, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision and award of the Workmen's Compensation Board. Decedent, who had been employed by the Ritz Carlton Hotel as a doorman for 45 years, collapsed and died January 14, 1955 as an incident to carrying heavy bags into the lobby of the hotel. Death was due to coronary arteriosclerosis. The issue on appeal is whether the Special Disability Fund under subdivision 8 of section 15 Work. Comp. of the Workmen's Compensation Law should be chargeable with the award; and this in turn depends upon whether there is substantial evidence to sustain the finding of the board that the employer "did not have knowledge of a permanent pre-existing physical impairment" within the meaning of the subdivision. The appellants argue that there is "substantial evidence that the employer * * * had knowledge of the existence of a prior permanent disability and retained the deceased in its employ notwithstanding". But this is not controlling on an appeal of this kind. The question is not whether there is substantial evidence differing from the finding of the board; but rather whether there is substantial evidence supporting it. There is testimony by the widow that the decedent had been under a doctor's care for about four years for a "heart condition"; but decedent lost no work and there is no proof that the employer knew of the nature of the condition. A clerical employee testified she noticed decedent take "a little drink" and thereupon advised an assistant manager of this incident, who told her decedent took a drink because he had a heart condition. She later told the general manager of the incident and the reason given by the assistant manager. The general manager testified in effect that he had no knowledge of the nature of the condition for which decedent was going to a doctor or that he had a heart condition. There is, accordingly, substantial evidence to sustain the board's finding that "the employer did not have knowledge of a pre-existing physical impairment". Decision and award unanimously affirmed, with costs to respondent Special Disability Fund.