[142 N.Y.S.2d 110] John M. Cullen, New York City, for appellant Special Disability Fund under Section 15-8.
Joseph D. Edwards, New York City (Ralph S. Stowell and Charles A. Cooper, New York City, of counsel), for appellants Employer and Insurance Carrier.
T. A. Quinn, New York City, for claimant-respondent.
Jacob K. Javits, Atty. Gen. (Roy Wiedersum and Daniel Polansky, Asst. Attys. Gen., of counsel), for respondent Workmen's Compensation Board.
Before FOSTER, P. J., and COON, HALPERN, IMRIE, and ZELLER, JJ.
All appellants agree in the claims that the Workmen's Compensation Board's award of death benefits in this case lacks substantial probative evidence to support it. Beyond that, the appellant, Special Disability Fund, contends that the decision of the board imposing liability on it under subdivision 8 of section 15 of the Workmen's Compensation Law is contrary to law.
Deceased employee was general maintenance man at a garden apartment development. One of the maintenance details was the removal of carbon accumulating underneath the burners in oil furnaces. This work was performed at times by the superintendent of the property and at other times by decedent. It involved the process of chopping away the carbon with a heavy crowbar. In the operation the bar was inserted through an opening in the furnace some eight to twelve inches above the floor, requiring the operator to stoop down and to work in a position involving severe physical strain. Deceased claimed that on July 18, 1949, while chopping at the carbon with the crowbar, he fell down, could not get up [142 N.Y.S.2d 111] for a couple of minutes, and then crawled up the steps. That evening he informed the superintendent of the property, who was not on duty that day, that his heart bothered him, that he could not continue to work, and that the doctor wanted
him to go to the hospital. He gave the superintendent no history of the accident or injury. He had not told the doctor whom he visited that afternoon of the furnace incident, nor did he do so on the succeeding day at the hospital, where a diagnosis of coronary insufficiency was made. He never returned to his work, was readmitted to the hospital on September 1, 1950, and died there on September 13, 1950, the principal cause of death being noted as myocardial infarction.
In our opinion the evidence in the record supports the finding of the accident and of death as the natural and unavoidable result thereof, though, as appellants argue, decedent gave no sworn testimony. He filed compensation claims in November 1949 and March 1950. He could not, of course, testify in the death case, but he was present at three hearings during his lifetime in his compensation proceeding when he could have been examined. His 'hearsay' statements in his claims, to his son-in-law, and to his doctors were sufficiently corroborated by the established facts and circumstances, to the end that there can be slight doubt of their truth. There was no evidence to show that an accident did not occur as he said. The testimony of the superintendent as to the method of cleaning carbon deposits and as to decedent's duty with respect thereto, decedent's complaint to him, and the medical evidence of a heart attack on that date are all corroborative.
This brings us to the board's bare finding that the case 'comes within the provisions of Section 15, subd. 8 of the Workmen's Compensation Law.' The legislation there referred to was designed to encourage the employment of partially disabled persons. Included in the pattern is a provision for certain reimbursements to employers from a Special Disability Fund for awards paid to such partially disabled persons upon subsequent disability, but within the scope of and subject to the limitations of the statute.
The deceased employee had previously lost his right eye, which was a 'permanent physical impairment' within the purview of said subdivision 8. The employer knew of such loss, such knowledge constituting a basic requirement for reimbursement by the Special Disability Fund in appropriate circumstances. Baron v. Nobar Realty Corp., 281 A.D. 295, 120 N.Y.S.2d 146; Zyla v. A. D. Juilliard & Co., Inc., 277 A.D. 604, 102 N.Y.S.2d 255.
Paragraph (e) of subdivision 8 of said section 15 provides that if an employee with a pre-existing 'permanent physical impairment' incurs a subsequent injury through an accident arising out of ...