Claim of Tuttle v. Hotel Earle , 2 A.D.2d 906 ( 1956 )

Appeal by the employer and carrier from an award made by the Workmen’s Compensation Board. The sole question is whether the second injury fund under subdivision 8 of section 15 of the Workmen’s Compensation Law is liable to reimburse the carrier for compensation and medical expenses beyond the first 104 weeks of disability. This in turn depends upon whether the employer had knowledge of a permanent physical impairment on the part of the employee prior to the accident. (Zyla v. Juilliard & Co., 277 App. Div. 604.) Claimant was employed by the appellant employer as a chambermaid. While scrubbing some stairs in the hotel, she slipped and fell backwards and as a result suffered a fracture and dislocation of the spine. There is evidence that, before the accident, the claimant had been suffering from spondylolisthesis, a forward displacement of the lumbar vertebrae, but the claimant testified that she was not aware of this condition and, of course, she could not have notified her employer of a condition of which she herself was unaware. The medical proof is that her condition could have been symptom free before the accident. There was also some evidence that the claimant had suffered from a pre-existing cardiovascular disease and deformities of her feet but it appears that all that the claimant knew about this was that she had dizzy spells and that her feet hurt her after standing on them for long periods. The hotel manager testified that he knew that the claimant was having trouble with her back and feet but, in view of the claimant’s testimony as to her own ignorance of any permanent impairment, the hotel manager’s testimony did not require the board to find that the employer knew that the claimant was suffering from a permanent physical impairment within the meaning of the statute. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Halpern. Zeller and Gibson, JJ. [See 3 A D 2d 609.]