Claim of Allen v. Hulbert Forwarding Co.

Reynolds, J.

Appeal by the Special Disability Fund (Workmen’s Compensation Law, § 15, subd. 8) from a decision of the Workmen’s Compensation Board holding the Fund liable for claimant’s increased permanent disability. It is clear that as the result of a physical examination conducted at the time claimant was hired in 1948 the employer was fully aware that claimant had previously had his left knee cap completely removed and engaged his services upon consideration of his condition. There is also substantial evidence that this disability when combined with the disability resulting from a 1959 work-connected injury left a total disability greater than that related to the 1959 accident alone. On this state of the record the’ board could clearly reach the determination rendered. Since the defect was an obvious handicap to employment generally, it is not controlling on the question of the Fund’s liability that the prior condition did not contribute to the second accident and did not handicap claimant’s performance of the particular work of operating a motor vehicle for which the employer hired him. (Matter of Dalaba v. Mt. View Cemetery Assn., 24 A D 2d 688; Matter of Nagorka v. Goldstein, 4 A D 2d 904.) Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Herlihy and Staley, Jr., JJ., concur; Taylor, J., not voting.