Saunders v. Pepsi Cola

• Decision Date: 23 April 1998
• Citation: 249 A.D.2d 780,671 N.Y.S.2d 877
• Parties: , 1998 N.Y. Slip Op. 3756 In the Matter of the Claim of Thomas SAUNDERS, Respondent, v. PEPSI COLA et al., Appellants, and Special Disability Fund, Respondent. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 877

671 N.Y.S.2d 877

249 A.D.2d 780, 1998 N.Y. Slip Op. 3756

In the Matter of the Claim of Thomas SAUNDERS, Respondent, v. PEPSI COLA et al., Appellants and Special Disability Fund, Respondent Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division Third Department.

April 23, 1998.

Buckner & Kourofsky (David Prusik, of counsel), Rochester, for appellants.

Charles Coakley, Special Funds Conservation Committee (Morris N. Lissauer, of counsel), New York City, for Special Funds Conservation Committee, respondent.

Before CARDONA, P.J., and YESAWICH, PETERS, SPAIN and CARPINELLO, JJ.

PETERS, Justice.

Appeal from a decision of the Workers' Compensation Board, filed July 11, 1996, which, inter alia, discharged the Special Disability Fund from liability under Workers' Compensation Law § 15(8).

On December 28, 1989, claimant injured his lower back in the course of his employment while delivering cases of beverages, a job he had previously performed for the employer for approximately six years without noticeable back difficulties. As a result of the accident, claimant had two back surgeries and was awarded workers' compensation benefits. During the course of claimant's medical treatment, X rays revealed that claimant had the preexisting condition of spondylolisthesis. Consequently, the employer's workers' compensation carrier filed an application seeking to impose liability upon the Special Disability Fund pursuant to Workers' Compensation Law § 15(8)(d). The Workers' Compensation Board ultimately concluded that claimant's compensable permanent partial disability was solely caused by the injuries sustained in the December 1989 accident and rejected the carrier's Workers' Compensation Law § 15(8)(d) claim. This appeal by the employer and its carrier ensued.

We affirm. In our view, the Board did not err in discharging the Special Disability Fund. "To obtain reimbursement pursuant to the statute, 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 [citations omitted]; see, Workers' Compensation Law § 15[8][d] ).

Here, there is substantial evidence in the record to...