Opinion
February 3, 1955.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Bergan, Coon, Imrie and Zeller, JJ.
Claimant is a gardener. On June 19, 1946, he fell in the course of employment suffering a strained back and contusions. These injuries activated a pre-existing osteoarthritis of the hip. He underwent medical care but lost no time from work. He left that employment in September, 1946, and was hired by the present employer-appellant. On November 3, 1947, he fell in the course of this employment and suffered a further activation of the pre-existing osteoarthritis, an adductor involvement of the left thigh and other injuries. The appellants argue that the Special Disability Fund ought not to have been discharged by the board and that the fund would be liable under subdivision 8 of section 15 of the Workmen's Compensation Law. The board was not required to find on this record, however, that the previous injury, which did not prevent claimant from working, or the underlying pre-existing osteoarthritis were, either singly or together, such "permanent physical impairment" as to be likely to be a hindrance or obstacle to employment within the statutory definition. The record on this question is open fairly to the interpretation made by the board. Nor is there any proof that the appellant employer here had any knowledge of the existence of the kind of physical impairment which the statute describes when he hired claimant or while the work was continued. Proof of knowledge by the employer's wife of slight physical disability or weakness does not necessarily require a finding of the kind appellants seek to impose upon the board. We have heretofore passed on the question of the extent of an employer's knowledge of the physical condition required to charge the Special Disability Fund. (Cf. Matter of Zyla v. Juilliard Co., 277 App. Div. 604, and Matter of Caggiano v. Cella, 281 App. Div. 1050.) Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.