Claim of Rosenberg v. Ernst & Co. , 24 A.D.2d 672 ( 1965 )

Taylor, J.

Appeal by an employer and its carrier from a decision of the Workmen’s Compensation Board discharging Special Disability Fund from liability for the payment of a part of an award of compensation benefits to claimant. In 1954 claimant, then about 60 years of age, entered the employ of appellant employer as a messenger. Approximately one and one-half years later he was transferred to the more sedentary occupation of an addressograph operator in its mail department. On September 1, 1960 while so employed the anterior portion of his right leg afflicted with varicose veins struck an overturned table. A traumatic thrombophlebitis thereafter developed which was followed by episodes of pulmonary infarction and the onset of disabling coronary insufficiency for which an award for permanent partial disability was made. The award itself is not challenged. Appellants contest only the finding of the board that the employer did not have knowledge of a pre-existing permanent impairment within the meaning of subdivision 8 of section 15 of the Workmen’s Compensation Law. While there was evidence that the employer knew before claimant’s transfer was effected that he periodically “ had trouble with his legs ” there was none that it was aware of the existence of the varicosities or of the hazard that an injury to a leg so diseased might result in thrombophlebitis. Whether the employee’s representative who directed the shift was in a position to and did make an informed decision that the pre-existing condition was such a permanent physical impairment as likely to be a hindrance or obstacle to employment presented a purely factual issue for determination by the board. (Matter of Zyla v. Juilliard & Co., 277 App. Div. 604.) Its finding that such was not the case has substantial support in the record. Decision affirmed, with costs to respondent Special Disability Fund. Gibson, P. J., Herlihy, Reynolds and Hamm, JJ., concur.