Opinion
November 16, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
This is an appeal from a decision of the Workmen's Compensation Board which established the liability of the Special Fund (Workmen's Compensation Law, § 15, subd. 8). The issue is whether the record sustains the finding of the board that the employer had knowledge of the claimant's previous diabetic condition, which was likely to be a hindrance or obstacle to his employment and constituted knowledge of a pre-existing permanent impairment. The claimant was involved in a compensable accident on June 20, 1957, when he fell from a ladder and sustained multiple injuries, including several fractures. The employer testified that the claimant had told him about a year prior to the accident that he had "sugar" and he further testified that he assumed that this meant sugar diabetes although the actual condition was not discovered until four days after the accident when he was confined in the hospital. The employer further stated that while he considered "sugar" disabling, he did not consider the claimant disabled from performing his usual work or that it in any way handicapped him as a house painter. He stated he considered someone disabled when he could not work. One of the claimant's doctors testified that as a result of the injuries sustained on June 20, the claimant was permanently partially disabled but he could express no opinion as to what, if any, effect the diabetes had upon such condition. The other doctor, a specialist in internal medicine, stated that the sugar condition was a permanent disability and that the pre-existing diabetes caused the disability to be materially and substantially greater than would have resulted from the injuries sustained in the accident alone. It has been decided that if the injury were permanent and the employer had formed his own conclusion or belief that such was the fact and had hired or retained the injured person, the section applies. ( Matter of Dubrow v. 40 West 33rd St. Realty Corp., 4 A.D.2d 896, 897; Matter of Sheldon v. Doughty's Laundry Serv., 4 A.D.2d 909. ) The board here has determined that the necessary prerequisites to bring the facts within the meaning of the section, including prior knowledge of the claimant's condition by the employer, were established and the record sustains such findings. Decision unanimously affirmed, with costs.