Bushey v. Ridge

• Citation: 77 A.D.3d 1006,908 N.Y.S.2d 470
• Parties: In the Matter of the Claim of Sarah BUSHEY, Respondent, v. Schuyler RIDGE et al., Appellants, and Special Disability Fund, Respondent. Workers' Compensation Board, Respondent.
• Decision Date: 07 October 2010
• Court: New York Supreme Court Appellate Division

908 N.Y.S.2d 470
77 A.D.3d 1006

In the Matter of the Claim of Sarah BUSHEY, Respondent,
v.
Schuyler RIDGE et al., Appellants,
and
Special Disability Fund, Respondent.
Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 7, 2010.

908 N.Y.S.2d 471

Stockton, Barker & Mead, L.L.P., Albany (Matthew R. Mead of counsel), for appellants.

Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel), for Special Disability Fund, respondent.

Before: SPAIN, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ.

LAHTINEN, J.

77 A.D.3d 1006

Appeal from a decision of the Workers' Compensation Board, filed April 22, 2009, which discharged the Special Disability Fund from liability under Workers' Compensation Law § 15(8)(d).

Claimant was employed as a certified nursing aide and injured her back and left hip in an accident at work. Her claim for workers' compensation benefits was established, and she was eventually found to have sustained a permanent partial disability. In the course of the workers' compensation proceedings, a physician conducting an independent medical examination of claimant noted that she had preexisting hypertension and opined that such contributed to the severity of her disability. The employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) thereafter sought reimbursement from the Special Disability Fund pursuant to Workers' Compensation Law § 15(8)(d). The Workers' Compensation Board ultimately rejected that claim, and the employer now appeals.

We affirm. In order to obtain reimbursement under Workers' Compensation Law § 15(8)(d), "an employer must show that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone" ( Matter of Sturtevant v. Broome County, 188 A.D.2d 893, 893-894, 591 N.Y.S.2d 631 [1992]; see Matter of O'Reilly v. Raymond Concrete Piling, 47 N.Y.2d 891, 892, 419 N.Y.S.2d 475, 393 N.E.2d 470 [1979];

77 A.D.3d 1007

Matter of Li v. Southern Garden, Inc., 69 A.D.3d 1175, 1177, 893 N.Y.S.2d 665 [2010] ). Here, claimant's hypertension constituted a preexisting permanent impairment, but she testified that it was controlled by medication and affected neither her work for the...