Claim of Griffin v. John Civetta & Sons

—Appeal from a decision of the Workers’ Compensation Board, filed July 20, 1978, which discharged the Special Disability Fund from liability under section 15 (subd 8, par [d]) of the Workers’ Compensation Law. While working for the employer herein on October 29, 1974, claimant concededly sustained a compensable back injury, and it is likewise uncontested that he had a pre-existing permanent physical impairment as a result of a back injury sustained on September 5, 1973. Claimant’s disability after February 18, 1975 was subsequently apportioned 50% to each of these accidents, and the only question presented for our review is whether or not the board properly discharged the Special Disability Fund from any liability for claimant’s award under section 15 (subd 8, par [d]) of the Workers’ Compensation Law on the ground that appellants failed to establish that the employer had the requisite knowledge of the pre-existing permanent impairment. We hold that the board’s decision should be affirmed. Cited by appellants as evidentiary support for the proposition that the employer did have the requisite knowledge are a statement dated May 30, 1975 and signed by Arthur W. Cooke, the employer’s job superintendent, and also Cooke’s testimony at a referee’s hearing on August 5, 1977. However, although the signed statement does tend to indicate that the employer through its job superintendent did have the necessary knowledge of claimant’s earlier injury, the reliability of that statement is brought into serious question by the fact that it was prepared by the employer’s carrier and submitted to Cooke for his signature, and it might well be assumed that Cooke felt some pressure to sign the statement presented by his employer’s insurance company. Moreover, Cooke’s own testimony establishes that he only vaguely recalled claimant’s back problem at the hearing and that he had not given any consideration to claimant’s condition until the carrier came to him with the statement. Under these circumstances, we cannot say that the board acted unreasonably in discrediting the signed statement and placing little reliance upon Cooke’s vague testimony, and, accordingly, the decision of the board that the employer 745 lacked the requisite knowledge should not be disturbed (cf. 300 Gramatan Ave. Assoc, v State Div. of Human Rights, 45 NY2d 176; Matter of Ruane v Cushman, 70 AD2d 697; Matter of Saltus v Eastern Airlines, 59 AD2d 811). Decision affirmed, with costs to the Special Disability Fund against the employer and its insurance carrier. Mahoney, P. J., Greenblott, Kane and Main, JJ., concur.