Bellucci v. Tip Top Farms, Inc.

• Decision Date: 17 April 1969
• Citation: 248 N.E.2d 864,24 N.Y.2d 416,301 N.Y.S.2d 14
• Parties: , 248 N.E.2d 864 Claim of Carmella BELLUCCI, Respondent, v. TIP TOP FARMS, INC. et al., Appellants, and Special Disability Fund, Respondent. Workmen's Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 14

301 N.Y.S.2d 14

24 N.Y.2d 416, 248 N.E.2d 864

Claim of Carmella BELLUCCI, Respondent, v. TIP TOP FARMS, INC. et al., Appellants, and Special Disability Fund, Respondent Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

April 17, 1969.

Anne G. Kafka and Charles J. Jones, New York City, for appellants.

James P. Lynch and John M. Cullen, New York City, for Special Disability Fund, respondent.

No appearance for the remaining respondent.

JASEN, Judge.

Decedent was employed by Tip Top Farms, Inc. for 12 years as a milk delivery routeman. As part of his duties, decedent was required to lift and carry cases of milk weighing 50 to 60 pounds. Decedent suffered a heart attack while delivering milk on August 5, 1965, and died before reaching a hospital. The heart attack resulted in part from severe 'hypertensive arteriosclerotic heart disease' which had existed for at least five years prior to death.

Claimant, decedent's widow, was awarded death benefits, and the employer and its insurance carrier sought reimbursement from the Special Disability Fund pursuant to section 15 (subd. 8) of the Workmen's Compensation Law, Consol.Laws, c. 67. The Referee found that the insurance carrier was entitled to reimbursement. The Workmen's Compensation Board, however, reversed the Referee's decision and discharged the Special Disability Fund from liability upon the ground that 'the employer could not have arrived at an informed opinion that the decedent's condition was permanent simply because he (the employer's president) knew that he (decedent) had hypertension for which medication was required.' The Appellate Division affirmed, holding that the fact that the employer's president was aware that decedent suffered from high blood pressure and that this condition could not be 'remedied' was not sufficient to mandate a finding that the employer possessed an 'informed judgment' that 'the known condition was permanent.'

Section 15 (subd. 8, par. (e)) of the Workmen's Compensation Law provides that an employer or its insurance carrier shall be reimbursed from the Special Disability Fund for benefits paid a claimant in excess of 104 weeks of disability if the compensable injury or disease was contributed to by a pre-existing permanent physical impairment.

It is not disputed that decedent suffered from a permanent physical impairment within the meaning of the statute and that this impairment contributed to his death. The only controverted issue on appeal is whether the employer possessed sufficient knowledge of decedent's disease and its permanency.

The statute (§ 15, subd. 8) per se does not require knowledge of the employee's pre-existing impairment on the part of the employer. However, the lower court has implied such a requirement from the policy underlying the statute, reasoning that there is no need to encourage an employer to hire a handicapped employee it does not know is handicapped. (Matter of Zyla v. Juilliard & Co., 277 App.Div. 604, 102 N.Y.S.2d 255.)

The extent of employer knowledge of the employee's physical impairment and its permanency required to establish the employer's right to reimbursement from the Special Disability Fund has proven to be a troublesome issue. 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, 167 N.Y.S.2d 98; Matter of Sheldon v. Doughty's Laundry Serv., 4 A.D.2d 909, 167 N.Y.S.2d 56; Matter of Dugan v. Muller Dairies, 282 App.Div. 590, 125 N.Y.S.2d 530). 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, 156 N.Y.S.2d 770; Matter of Vance v. Ormsby, 6 A.D.2d 960, 176 N.Y.S.2d 713; Matter of Cohen v. Campbell Co., 13 A.D.2d 570, 211 N.Y.S.2d 896; Matter of LaCount v. Kaufman, 23 A.D.2d 614, 256 N.Y.S.2d 760; 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. Mr. Burkin related that decedent frequently complained to him of headaches, dizziness and fatigue, and that he had observed decedent...