Claim of Ciliberti v. Certified Creations, Inc.

Appeal from a decision of the Workers’ Compensation Board, filed September 17, 1979. The board rejected the application of the appellants to shift liability for a 1973 compensable accident to the Special Funds Conservation Committee (Special Disability Fund under subdivision 8 of section 15 of the Workers’ Compensation Law) upon finding that the appellants failed to establish the employer’s required knowledge of a pre-existing permanent physical handicap. The board found in part as follows: “Robert Lehr testified that he is owner of the company and is the Executive Vice President and the Secretary-Treasurer. They have the right to hire and fire. He did not recall if he personally interviewed claimant when hired in 1962 but certainly went over application. He could not say he fully understood the use of the term permanent disability. He knew claimant did not hear well at times and the witness would talk loudly to him. The hearing problem did not interfere with claimant’s work. He did not know if claimant was paid for hearing disability or if claimant ever wore a hearing aid. In 1970 claimant injured his arm and witness recalled claimant had some problem after that when lifting things. Claimant did miss work at times but witness was not sure if that was before or after November 15, 1973. The witness thought that these disabilities could be a hinderance in getting other employment. Since claimant’s shoulder never cleared up between 1970 and 1973 he would feel it was permanent.” Evaluation of the evidence is for the board and it cannot be said that, as a matter of law, the appellants’ evidence conclusively established the required knowledge. Decision affirmed, with costs to the Special Funds Conservation Committee. Mahoney, P. J., Greenblott, Sweeney, Kane and Herlihy, JJ., concur.