Opinion
October 25, 1979
Appeal from a decision of the Workers' Compensation Board, filed November 14, 1978, discharging the Special Fund from liability. Claimant was hired by the employer as a mechanic on September 27, 1974. On his application for the job, he stated he had stomach surgery for ulcers in 1960. Claimant had a second operation in 1965, consisting of a subtotal gastrectomy which involved removal of 70% of claimant's stomach. On November 14, 1974, claimant turned a piece of iron at work and felt pain in the low back. He was treated with traction for 30 days, without relief. Claimant returned to work in May, 1975, and was put on light duty. In May, 1976, he underwent decompressive laminectomy of L4, L5 and removal of the disc. The carrier herein filed a C-250 with the Workers' Compensation Board and the Special Fund, alleging that claimant had a pre-existing permanent physical impairment based on subtotal gastrectomy, duodenal ulcer and diverticulitis, and sought reimbursement from Special Fund. In order to have reimbursement from the fund, the burden was upon the appellants to establish that the employer had either hired or continued in employment the claimant with knowledge of a pre-existing physical impairment affecting his employability and a good faith belief in permanency. Dr. Otto Kestler testified that, in his opinion, claimant's pre-existing subtotal gastrectomy caused his disability to be materially and substantially greater as a consequence thereof subsequent to the accident. Dr. Saul Lehv testified that, in his opinion, the prior gastrectomy and claimant's symptoms following the surgery did not cause a materially and substantially greater disability. The board found that, based on the medical evidence including the report of Dr. Lehv, claimant's prior stomach condition did not materially and substantially increase his disability. Such finding is supported by substantial evidence, and should be affirmed (Matter of Greico v Grieco Elec. Co., 52 A.D.2d 1011; Matter of Jamieson v Passarelli, 15 A.D.2d 854). Decision affirmed, with costs to the Special Fund Conservation Committee against the employer and its insurance carrier. Greenblott, J.P., Staley, Jr., Main, Mikoll and Herlihy, JJ., concur.