Ruane v. Cushman

— Appeals from a decision of the Workers’ Compensation Board, filed December 8, 1977, as amended by a decision filed June 30, 1978, which discharged the Special Disability Fund from liability under subdivision 8 of section 15 of the Workers’ Compensation Law. The sole issue presented on these appeals is whether there is substantial evidence to support the board’s conclusion that the employer lacked knowledge of claimant’s pre-existing permanent physical impairment prior to her accidental injuries sustained in 1969 and 1971. At a hearing, claimant testified that she was employed as a housekeeper and injured her back in 1962, that she continued to have trouble with her back thereafter, and that her employer and his son knew about her back problems. Claimant reinjured her back in 1969 and again in 1971. The employer died before he could testify at the hearing, but his son, a physician, testified that he communicated to his father prior to the 1971 accident his opinion that claimant had a permanent disability relating to her back, but was not sure his father accepted that opinion prior to either of the accidents. The son also testified that he could not recall when claimant started complaining of back pain to him and that he advised his father to reduce claimant’s propensity to injure her back by heavy lifting, but when that occurred he could not possibly say. The burden was upon the appellants to establish that the employer had continued to employ the claimant with knowledge of a pre-existing permanent physical impairment affecting her eligibility and a good faith belief in its permanency (Matter of Hendricks v Toro Power House, 53 AD2d 761, affd 42 NY2d 879). Questions of fact involving credibility and conflicting testimony were presented for the board’s resolution and, if supported by substantial evidence, the board’s determination may not be disturbed (Matter of Milner v Country Developers, 43 AD2d 595). The testimony concerning the employer’s knowledge of claimant’s pre-existing permanent physical impairment was equivocal at best. Consequently, we are of the opinion that the board’s decision is supported by substantial evidence and must be affirmed (see Matter of Saltus v Eastern Airlines, 59 AD2d 811). Decision affirmed, with one bill of costs to respondents filing briefs. Mahoney, P. J., Greenblott, Sweeney, Main and Mikoll, JJ., concur.