Mayer v. Harmony Country Club

• Decision Date: 21 June 1972
• Citation: 39 A.D.2d 990,333 N.Y.S.2d 499
• Parties: In the Matter of the Claim of Herbert MAYER, Respondent, v. HARMONY COUNTRY CLUB et al., Appellants, and Special Disability Fund, Respondent, Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 499

333 N.Y.S.2d 499

39 A.D.2d 990

In the Matter of the Claim of Herbert MAYER, Respondent, v. HARMONY COUNTRY CLUB et al., Appellants, and Special Disability Fund, Respondent, Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

June 21, 1972.

Pasternack & Ciaccio, New York City, for respondent Herbert Mayer.

Milton Peckman, New York City (Louis Busell, New York City, of counsel), for appellants.

George Cholet, New York City (James P. Lynch, New York City, of counsel), for respondent Special Disability Fund.

Louis J. Lefkowitz, Atty. Gen., for respondent Workmen's Compensation Bd. (No appearance on the appeal).

Before HERLIHY, P.J., and STALEY, GREENBLOTT, SWEENEY and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed June 19, 1971, denying appellants reimbursement from the Special Disability Fund (Workmen's Compensation Law, § 15, subd. 8).

Claimant, a baker's helper, sustained a myocardial infarction for which compensation was established. Based upon previous impairment of arthritis, asthma and diabetes, the carrier filed a claim for reimbursement under subdivision 8 of section 15 of the Workmen's Compensation Law. The majority of the board, finding that 'the employer did not have sufficient knowledge of the claimant's preexisting condition to be able to make an informed judgment of permanent physical impairment', discharged the Special Fund from liability.

To establish a claim for reimbursement under the statute the impairment must be, in fact, permanent and the employer must hire or continue in employment a worker 'with knowledge of the impairment and a good faith belief of its permanency' (Matter of Bellucci v. Tip Top Farms, 24 N.Y.2d 416, 420, 301 N.Y.S.2d 14, 17, 248 N.E.2d 864, 866; Matter of Starrmann v. Abraham & Straus, 36 A.D.2d 670, 318 N.Y.S.2d 234, mot. for lv. to app. den. 28 N.Y.2d 487, 322 N.Y.S.2d 1027, 270 N.E.2d 904). The finding of the majority of the board was more stringent than the Bellucci requirement (see Matter of Starrmann v. Abraham & Straus, Supra; Matter of Lawrence v. New York State Realty & Term. Co., 35 A.D.2d 235, 315 N.Y.S.2d 386) and therefore must be reversed and remanded for proper findings (see Matter of Green v. Kentucky Fried Chicken, 38 A.D.2d 644, 327 N.Y.S.2d 197; Matter of Ferry v. Jamestown Malleable Iron Div., 35 A.D.2d 870; Matter of Lawrence v. New...