the Claim of Brigandi v. Town & Country Linoleum & Carpet

Nov 9, 1995
Versions:221 A.D.2d 728
633 N.Y.S.2d 659
1995 N.Y. App. Div. LEXIS 11154
—Cardona, P. J.

Appeals (1) from a decision and an amended decision of the Workers’ Compensation Board, filed June 29, 1993 and June 6, 1994, which ruled that there was no evidence of a preexisiting permanent physical impairment and discharged the Special Disability Fund from liability, and (2) from a decision of said Board, filed July 29, 1994, which, inter alia, denied the employer’s application for reconsideration.

On February 26, 1990, decedent died after suffering cardiac arrest during the performance of his duties as a carpet layer. An autopsy revealed the existence of underlying coronary atherosclerotic disease. Claimant, decedent’s widow, filed a claim for death benefits which were ultimately awarded following a hearing. Prior to this award, however, the employer’s compensation carrier filed a notice of claim for reimbursement from the Special Disability Fund pursuant to Workers’ Compensation Law § 15 (8). The Workers’ Compensation Board ultimately found that the record did not support a finding that decedent’s underlying heart condition was or was likely to be a hindrance to his employment prior to his death and, therefore, Workers’ Compensation Law § 15 (8) did not apply. The Board then held the compensation carrier liable and discharged the Fund. The employer’s application for full Board review and/or reconsideration was denied and these appeals by the employer and its carrier followed.

We affirm. In order to obtain reimbursement pursuant to Workers’ Compensation Law § 15 (8) (d), "an employer must show that the claimant had a preexisting permanent impairment that hindered job potential, a subsequent injury arising out of and in the course of employment, and a permanent disability caused by both conditions materially and substantially greater than what would have been caused by the work-related injury alone” (Matter of Sturtevant v Broome County, 188 AD2d 893, 893-894). Here, we disagree with the allegation that the Board must have ignored medical evidence in the record indicating a preexisting physical impairment simply because it determined that Workers’ Compensation Law § 15 (8) was inap*729plicable (see, Matter of Bishop v Remlap Constr., 181 AD2d 938). Instead, the Board could rationally conclude that, similar to the situation in Matter of Sturtevant v Broome County (supra, at 894), "nothing in the record established that [decedent’s heart disease] hindered his job potential in any way”.

White, Casey, Yesawich Jr. and Spain, JJ., concur. Ordered that the decisions and amended decision are affirmed, without costs.