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EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT.

The Third Department determined claimant’s employer was not entitled to relief from the special disability fund. Claimant had work-related injuries. In order to recover from the fund, the employer was required to demonstrate the claimant: (1) had a preexisting disability (which affected her employability); and (2), the preexisting condition combined with the work-related injuries constituted a permanent disability greater than that caused by the work-related injuries alone:

“In order to be entitled to receive reimbursement from the Fund pursuant to Workers’ Compensation Law § 15 (8) (d), the employer must demonstrate that the claimant suffered from (1) a preexisting permanent impairment that hindered job potential, (2) a subsequent work-related injury, and (3) a permanent disability caused by both conditions that is materially and substantially greater than would have resulted from the work-related injury alone”… . “The question with regard to the first requirement is not whether the preexisting condition is an obstacle or handicap to the claimant’s particular employment but, rather, whether it would be a hindrance to the claimant’s general employability” … .

We agree with the Board that the employer did not demonstrate that claimant’s preexisting asthma condition hindered, or was likely to hinder, her employability. The record reflects that, although claimant suffered from asthma since at least 1999, she was taking medication, including the use of an inhaler. The record contains no evidence that claimant was under any restrictions because of her asthma, that her asthma affected her ability to perform her job or that it hindered her employability. Notably, “preexisting conditions that are controlled by medication have been found, without more, not to constitute a hindrance to employability” … . Matter of Murphy v Newburgh Enlarged City Sch. Dist., 2017 NY Slip Op 05500, 3rd Dept 7-6-17

 

WORKERS’ COMPENSATION LAW (EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)/SPECIAL DISABILITY FUND (WORKERS’ COMPENSATION LAW, EMPLOYER DID NOT DEMONSTRATE CLAIMANT’S PREEXISTING CONDITION HINDERED HER EMPLOYABILITY, THEREFORE EMPLOYER WAS NOT ENTITLED TO REIMBURSEMENT FROM THE SPECIAL DISABILITY FUND 3RD DEPT)

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DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE... ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS...