LaCount v. Kaufman

• Decision Date: 25 February 1965
• Citation: 23 A.D.2d 614,256 N.Y.S.2d 760
• Court: New York Supreme Court — Appellate Division
• Parties: Claim of Henry E. LaCOUNT, Respondent, v. Hector A. KAUFMAN et al., Respondents, and Special Disability Fund Under Sec. 15-8, Appellant, Workmen's Compensation Board, Respondent.

Page 760

256 N.Y.S.2d 760

23 A.D.2d 614

Claim of Henry E. LaCOUNT, Respondent, v. Hector A. KAUFMAN et al., Respondents, and Special Disability Fund Under Sec. 15-8, Appellant Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Feb. 25, 1965.

John M. Cullen, New York City, for appellant (George J. Barbero, New York City, of counsel).

J. C. Fitzpatrick, Plattsburgh, for claimant-respondent.

Joseph M. Seviero, New York City, for respondents (Bernard F. Farley, New York City, of counsel).

Louis J. Lefkowitz, Atty. Gen., for Workmen's Compensation Board.

Before GIBSON, P. J., and HERLIHY, REYNOLDS, AULISI and HAMM, JJ.

PER CURIAM.

This is an appeal by the Special Disability Fund from a board decision charging the Fund with liability under the provisions of subdivision 8 of section 15 of the Workmen's Compensation Law. The board found 'that the employer had knowledge of a permanent pre-existing physical impairment within the meaning of the law'.

It is conceded that there was no evidence in the medical reports or otherwise, prior to the second accident, of permanent disability in any degree, attributable to the first injury; and, indeed, the second accident occurred but seven months after the first, and claimant had returned to work only two months after his first injury. Of course, it is not necessary in a second-injury case that medical proof of permanent disability be adduced prior to the second incident; but it seems not unworthy of note that here, as in Matter of Vance v. Ormsby, 6 A.D.2d 960, 176 N.Y.S.2d 713, 'the board has credited the employer with prescience which the medical experts did not possess.' Further, although not of determinative importance, or course, we have indicated that at least certain back injuries do not constitute 'the type of injury which of itself puts the employer on notice of permanency'. (Matter of Gilson v. Bickford's, Inc., 12 A.D.2d 709, 208 N.Y.S.2d 849; Matter of Connors v. Haywood Floor Co., 14 A.D.2d 947, 221 N.Y.S.2d 150; and see Matter of Danelo v. Sibley, Lindsay & Curr Co., 17 A.D.2d 1020, 234 N.Y.S.2d 634.) In Vance (supra) we quoted our holding in Matter of Dubrow v. 40 West 33rd St. Realty Corp., 4 A.D.2d 896, 897, 167 N.Y.S.2d 98, 100, that: 'There is no requirement that the employer have medical evidence or knowledge to a point of medical certainty as to the permanence of the injury. It is sufficient, in a case in which the injury was actually permanent, that the employer had formed his own conclusion or belief that the injury was permanent'; but in amplification or interpretation we then stated: 'Implicit in this statement, of course, is the requirement that there be some reasonable basis for such 'conclusion or belief'.' 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. A. Zeibert & Sons, Inc., 2 A.D.2d 908, 156 N.Y.S.2d 770, in which the board discharged the Special Disability Fund and we affirmed,...