Matter of Weinberger v. A. Zeibert Sons, Inc.

12 Citing cases

  1. Matter of Vance v. Ormsby

    6 A.D.2d 960 (N.Y. App. Div. 1958)   Cited 13 times
    In Matter of Vance v. Ormsby (6 A.D.2d 960) it was held again that where permanency is not obvious, the employer could not have knowledge of permanency before the doctors could be aware of the same and in doing so, relied on Weinberger (supra).

    It is true that the employer testified, with reference to this five-month period, that claimant was never able to do any heavy lifting; but neither from this nor from the other testimony of the employer could the board properly infer knowledge or "an informed judgment" as to permanence. (See Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908.) Ordinarily, a layman would not consider a fractured collarbone as giving rise to a permanent disability. That result was not, at the time, contemplated by the physicians, one reporting no permanence in August, 1953 and another reporting no disability in October, 1953 and later testifying that permanence could not be determined in less than a year.

  2. Claim of Belluci v. Tip Top Farms, Inc.

    248 N.E.2d 864 (N.Y. 1969)   Cited 26 times
    In Matter of Bellucci v. Tip Top Farms (24 N.Y.2d 416) the Court of Appeals held that the Special Disability Fund is liable under section 15 (subd 8, par [a]) of the Workers' Compensation Law where an employer hires or continues in employment a worker with knowledge of his prior physical impairment and a good faith belief in permanency (p 420).

    Some cases applying the knowledge rule appear to require little more than a good faith belief by the employer that the employee suffered from a permanently disabling condition (see, e.g., Matter of Dubrow v. 40 West 33rd St. Realty Corp., 4 A.D.2d 896; Matter of Sheldon v. Doughty's Laundry Serv., 4 A.D.2d 909; Matter of Dugan v. Muller Dairies, 282 App. Div. 590). On the other hand, other decisions of the lower court require that the employer's good faith belief represent an informed judgment and be predicated upon some reasonable basis in fact. (See, e.g., Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908; Matter of Vance v. Ormsby, 6 A.D.2d 960; Matter of Cohen v. Campbell Co., 13 A.D.2d 570; Matter of La Count v. Kaufman, 23 A.D.2d 614; 2 Larson, Workmen's Compensation Law, § 59.33.) Here, the employer's president, Abe Burkin, testified that he knew that decedent suffered from high blood pressure for several years because decedent had informed him of the disease.

  3. Matter of Carbonaro v. Ozone Trucking Co.

    28 A.D.2d 1185 (N.Y. App. Div. 1967)

    Matter of La Count v. Kaufman ( 23 A.D.2d 614) does not appear to go so far as to mandate precise medical knowledge. Matter of Weinberger v. Zeibert Sons ( 2 A.D.2d 908) decided that an employer could not have had knowledge of permanency when there had not yet been any medical opinion of the same. In Matter of Vance v. Ormsby ( 6 A.D.2d 960) it was held again that where permanency is not obvious, the employer could not have knowledge of permanency before the doctors could be aware of the same and in doing so, relied on Weinberger ( supra).

  4. Matter of Kehoe v. Kimberly Clark Corporation

    28 A.D.2d 1049 (N.Y. App. Div. 1967)   Cited 1 times

    ( 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.

  5. Claim of Zona v. Geb & Souhan Yarn Co.

    24 A.D.2d 684 (N.Y. App. Div. 1965)

    " The claimant testified that he complained to the foreman of back difficulty after he "didn't show up for work" and told the foreman he was being treated by a physiotherapist but "didn't put that under compensation or anything." In Matter of Weinberger v. Zeibert Sons ( 2 A.D.2d 908) in which we affirmed the board's discharge of the Special Disability Fund, the appellants relied on the testimony of an officer of the employer that he "considered the back injury permanent because he had for many years suffered from a back condition which he believed similar to that of claimant" and we said that the board "was clearly warranted in finding unsubstantial the conclusory testimony of this nature, resting as it did on so tenuous a basis." In Matter of La Count v. Kaufman ( 23 A.D.2d 614) the board stated that the claimant after his second injury "`complained at various times that his back hurt, which led the employer to believe that it was a permanent condition'" and the record also contained the employer's statement that "`any back injury as far as I'm concerned — how can I express it — well, it's expected of being a permanent injury.

  6. Claim of La Count v. Kaufman

    23 A.D.2d 614 (N.Y. App. Div. 1965)

    Finding, in Vance ( supra), no such reasonable basis, we reversed the board decision which had charged liability to the Special Disability Fund. In Matter of Weinberger v. Zeibert Sons ( 2 A.D.2d 908), in which the board discharged the Special Disability Fund and we affirmed, appellants relied on proof that the employer's officer "considered the back injury permanent because he had for many years suffered from a back condition which he believed similar to that of claimant"; and we found the board "clearly warranted in finding unsubstantial the conclusory testimony of this nature, resting as it did on so tenuous a basis." That proof seems no weaker than that in the case before us. That Weinberger ( supra) was an affirmance does not alter the basic rule and standard as stated in Vance ( supra) and Weinberger ( supra), alike.

  7. Claim of Fuina v. Alco Products, Inc.

    21 A.D.2d 706 (N.Y. App. Div. 1964)   Cited 1 times

    Concededly, claimant suffered from a congenital defect in that his fifth lumbar vertebra was ankylosed or fused to the sacrum; and upon the record of claimant's pre-employment physical examination, made some seven months prior to the accident, it was noted by a rubber-stamp indorsement, in the imprint of which the words "spine defect" were interpolated in longhand, that: "This man has a permanent physical impairment diagnosed as spine defect which may be an obstacle to employment". The board was not bound to find that such a legend, expressive of a legal principle or conclusion and rubber-stamped upon a report of physical examination, constituted preponderant evidence that the self-insured employer had reached a considered and "informed" judgment and decision ( Matter of Alpert v. Tower Brand Yarn Corp., 16 A.D.2d 193, 194; Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908) as to the condition and whether, in fact, it was likely to be a hindrance or obstacle to employment. Indeed, the plant physician, although testifying generally to a physical handicap, at one point was asked whether the handicap was a hindrance to employment, and answered, "Technically, yes"; and his report of physical examination listed as other "impairments" such seemingly inconsequential defects as a deformity of the bridge of the nose, a scar above it and a scar in the eyebrow.

  8. Matter of Morehouse v. Town of Bolton

    19 A.D.2d 665 (N.Y. App. Div. 1963)

    Thus, there is no proof that the employer hired claimant as a handicapped person or, indeed, that he could know or infer either the nature of the back condition or its permanency. ( Matter of Vance v. Ormsby, 6 A.D.2d 960; Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908.) Contrary to appellants' contention, the decision was made and signed by a board panel, but as appellants were not furnished with a complete copy thereof prior to printing of the record we do not award costs. Decision unanimously affirmed, without costs.

  9. Matter of Randolph v. Howard

    18 A.D.2d 863 (N.Y. App. Div. 1963)

    Upon the crucial issue of knowledge ( Matter of Zyla v. Juilliard Co., 277 App. Div. 604) the board was not bound to regard as conclusive the lay opinion evidence of the employer which transcended the prescience of the attending physician who between June 11, 1958 and February 3, 1959 filed five reports in which he persistently stated that no permanent defect would result from the first injury. Taking the record as a whole there is in our view substantial evidence to support the board's determination. ( Matter of Connors v. Haywood Floor Co., 14 A.D.2d 947; Matter of Vance v. Ormsby, 6 A.D.2d 960; Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908; Matter of Weller v. Imperial Paper Color Corp., 286 App. Div. 896.) Decision unanimously affirmed, with costs to respondent, Special Disability Fund.

  10. Claim of Danelo v. Sibley, Lindsay & Curr Co.

    17 A.D.2d 1020 (N.Y. App. Div. 1962)

    We need not determine whether the evidence relied upon by respondent Special Disability Fund as negating permanency may be accounted substantial as there is, in any event, ample warrant for the board's finding that the employer did not have an "informed" opinion (cf. Matter of Zyla v. Juilliard Co., 277 App. Div. 604, 606) "as to the existence of a permanent handicap" resulting from the prior injury. Indeed, any other finding, upon this record and with respect to an injury of this nature, would have "credited the employer with prescience which the medical experts did not possess." ( Matter of Vance v. Ormsby, 6 A.D.2d 960; Matter of Connors v. Haywood Floor Co., 14 A.D.2d 947; Matter of Weinberger v. Zeibert Sons, 2 A.D.2d 908.) Decision unanimously affirmed, with costs to respondent Special Disability Fund.