Claim of Mandeville v. Sears, Roebuck & Co.

Appeal by the self-insured employer from a decision of the Workmen’s Compensation Board, filed June 22, 1972, which reversed the Referee’s finding of liability upon the Special Disability Fund under section 15 (subd. 8, par. [d]) of the Workmen’s Compensation Law and affirmed his. finding that claimant’s payments should continue at the total disability rate. Claimant, a telephone operator and clerical worker, sustained multiple injuries to her head, neck and back in a fall at work on June 26, 1969. Two questions are presented on this appeal: Was the board justified in absolving the Special Disability Fund of all liability for the injuries bf the claimant, and in determining that claimant was entitled to benefits at the total disability rate? There is substantial evidence in the record to support the board’s finding of no liability on the part of the Special Disability Fund. Special Fund cannot be held liable unless the claimant had, inter alla, a permanent physical impairment prior to her compensable injury (Matter of Friscia v. Mermaid Sea Prods., 27 A D 2d 614), and there is substantial medical testimony in the record to indicate that such was not the case. However, we cannot agree with the board’s second finding that the claimant was entitled to benefits at the total disability rate. While it is true that there was medical evidence to the effect that the claimant was unable to return to her former work and that she was permanently partially disabled, there was no medical evidence indicating that she could not perform some kind of work. Reliance by the claimant upon Matter of Logozzo v. Queens Structure Corp. (40 A D 2d 741) is misplaced, for in that case several medical witnesses testified that the claimant, while only partially permanently disabled, was clearly unemployable. We find no such evidence here. In addition, there is no evidence in this record that the claimant made any attempt to secure some other employment without success (Matter of Boberstein v. Marshall, 37 A D 2d 1024). Decision reversed and matter remitted for further proceedings consistent herewith, with 'Costs to appellant. Cooke, Main and Reynolds, JJ., concur; Herlihy, P. J., and Staley, Jr., J., concur in part and dissent in part in a memorandum by Herlihy, P. J.