Appeals (1) from a decision of the Workers’ Compensation Board, filed September 19, 1984, which discharged the Special Disability Fund, and (2) from a decision of said Board, filed February 20, 1986, which denied the application of the employer and its carrier for reconsideration.
We affirm. An employer seeking relief under Workers’ Compensation Law § 15 (8) must demonstrate that the employee had a permanent physical impairment prior to the accident, that such condition was known to the employer, and that the subsequent disability is materially and substantially greater than that which would have resulted from the subsequent injury alone (see, Workers’ Compensation Law § 15 [8]; Matter of Saletta v Allegheny Ludlum Steel Corp., 62 AD2d 360, lv denied 45 NY2d 711). In the instant case, the carrier failed to submit clarifying medical proof regarding the preexisting disability even after the Hearing Officer directed it to do so. The carrier’s contentions are directed at the knowledge element of a Workers’ Compensation Law § 15 (8) claim. However, before such knowledge element can be addressed, the existence of a previous disability must be dealt with. The Board’s finding that the carrier failed to submit the medical proof required despite ample opportunity to do so is neither arbitrary nor capricious and must be affirmed.
Next, the carrier challenges the Board’s denial of its application for reconsideration. Initially, we note that this is not an application to reopen a claim (see, e.g, Matter of Rusyniak v Syracuse Flying School, 37 NY2d 384), nor is it a motion to renew based on new evidence. Rather, it is simply a motion for reconsideration based on the evidence in the record. Such a motion lies in the discretion of the Board and denial thereof is not reviewable unless it is arbitrary and capricious (Matter
Decisions affirmed, with costs. Mahoney, P. J., Kane, Main, Casey and Levine, JJ., concur.
