Opinion
June 19, 1967
Appeal by self-insured employer from a decision of the Workmen's Compensation Board which (1) affirmed that part of a Referee's decision which discharged the Special Disability Fund under subdivision 8 of section 15 and (2) modified the award by increasing the rate. Among other prerequisites to the establishment of Special Fund liability for a "subsequent disability" sustained by an employee hired or retained in employment by an employer with knowledge of his pre-existing permanent physical impairment is a finding of "a permanent disability caused by both conditions that is materially and substantially greater than that which would have resulted from the subsequent injury or occupational disease alone". (Workmen's Compensation Law, § 15, subd. 8, par. [d].) The Referee specifically found that the employer had not "established medically that there is a materially and substantially greater disability than that which would have resulted from the second accident alone." It is this decision, correctly couched in the language of the statute, that the board affirmed when its own decision, after modifying the rate of the award, provided: "In all other respects, the Referee decision is Affirmed". In the paragraph preceding the decisional paragraph in which this language appeared, the board stated its finding "that the claimant had made a good recovery following her laminectomy and that her present disability is not materially and substantially greater." Obviously the word "greater" should have been followed by the substance of the statutory language "than that which would have resulted from the subsequent injury * * * alone"; and it is too clear to require discussion that the omission was inadvertent, particularly so in context, as most certainly the board, after finding disability and then increasing the rate of the award, did not intend to say that "her present disability is not * * * greater" than the prior nondisablement ensuing after her "good recovery following her laminectomy". Nevertheless, appellant seizes upon the obviously inadvertent omission and argues that "If the disability is not greater, the only logical conclusion is that the disability is the same as it was prior to the accident." The board's inadvertence is not to be condoned, as parties are always entitled to coherent and intelligible findings, but there is nothing so misleading in this self-evident omission as to warrant appellant's completely specious, if not, indeed, frivolous argument predicated upon it. Assuming arguendo that appellant's application for board review was adequate to tender the issue of continued causal relation for claimant's disability subsequent to the date that the employer ceased to make payments, we find insubstantial appellant's arguments as to the insufficiency of the board decision in respect thereof. Again, the decision might have been more carefully drawn but again its purport was clear. Ordinarily, the matter would be remitted for additional and adequate findings but in this case appellant's application for review of the finding of causal relation was of doubtful sufficiency and was affirmatively misleading in stating, "It would seem that the medical evidence of such disability [i.e., that for which the employer had been paying] continues." Further, and of overriding importance, there was no medical evidence to the contrary and remittal for a purely perfunctory finding would serve no useful purpose. Decision affirmed, with one bill of costs to respondents Special Disability Fund and Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.