Claim of Stanley v. Church of St. Helena , 26 A.D.2d 959 ( 1966 )

Staley, Jr., J.

Appeal by the employer and carrier from a decision of the Workmen’s Compensation Board dated September 21, 1965, discharging the Special Disability Fund under subdivision 8 of section 15 of the Workmen’s Compensation Law on the ground that the employer did not have the requisite knowledge of a permanent preexisting physical impairment. The claimant was employed as a cleaning woman in the Church of -St. Helena School. On March 12, 1962, she fell injuring her back. The record indicates that the claimant was five feet two inches tall and had weighed in excess of 300 pounds for many years prior to the accident. On April 15, 1965, the claimant was declared to be permanently disabled. The appellant carrier filed a claim for reimbursement from the Special Disability Fund alleging knowledge by the employer of a previous physical impairment by reason of the employee’s obesity of 8 to 10 years duration. The board determined that the employer did not have knowledge of a pre-existing permanent physical impairment as required by subdivision 8 of section 15 of the Workmen’s Compensation Board. No officer or other representative of the employer shown to have had anything to do with hiring claimant or with retaining her in the employ was produced and hence there was no evidence of such basic factors necessary to establish Special Fund liability as knowledge of permanency and an informed decision to employ or retain. Decision affirmed, with costs to Special Disability Fund. Gibson, P. J., Herlihy and Reynolds, JJ., concur; Taylor, J., not voting.