FIREMAN'S FUND INSURANCE COMPANY & another vs. COMMONWEALTH.

DREBEN, J. A judge of the Superior Court affirmed the action of the reviewing board (board) adopting the findings and decision of a single member which denied the appellant, Fireman's Fund Insurance Company, reimbursement from the Commonwealth's "Second Injury Fund" (G. L. c. 152, Sections 37 and 65). We affirm the judgment because the board, on the evidence presented, was warranted in finding that the employee's obesity was not "a known physical impairment which is due to any . . . disease or any congenital condition." G. L. c. 152, Section 37, as appearing in St. 1973, c. 855, Section 2.

We summarize the evidence before the board. At the time the employee was hired, he was "a markedly obese individual weighing between 270 and 320 pounds." Although the employer

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had reservations whether the employee could move quickly enough to perform his duties, the employer was not concerned about the employee's hurting himself and viewed him as healthy. The employee did not list any medical condition on his application for employment. Four days after being hired, the employee was hit by a car and received worker's compensation benefits. The insurer sought reimbursement from the Second Injury Fund because medical reports indicated that the employee's disability was, in large part, caused by his obesity.

The purpose of the Second Injury Fund is "`to encourage the employment of persons [with known physical impairments "due to any previous accident, disease or any congenital condition"] by relieving the employer or the insurer from the burden of paying the entire compensation for further disability of the employee due to the combined effect of his previous injury and one later received in the course of his employment.'" American Mut. Liab. Ins. Co. v. Commonwealth, 379 Mass. 398, 402 (1979), quoting from McLean's Case, 326 Mass. 72, 74 (1950). [Note 1]

The insurer, in contending that the employee's extreme obesity is a congenital condition or a disease within the scope of Section 37, relies on the testimony of an orthopedic surgeon who testified that the employee's obesity was a "familial trait" and a "metabolic condition." The Commonwealth, on the other hand, urges that the employee's varying weight [Note 2] indicates that the condition was not permanent, was a matter within the employee's control, and, for these reasons, was not the kind of disease or condition contemplated by G. L. c. 152, Section 37, See Shirley v. Triangle Maintenance Corp., 41 A.D.2d 800, 801 (N.Y. 1973) (evidence indicated claimant could lose weight).

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Applying the appropriate standard of review, see Korsun's Case, 354 Mass. 124, 125 (1968), we think the board was warranted in concluding that the insurer failed to show that the employee's condition was a "congenital condition" [Note 3] or a disease. Compare Durdaller v. Liberty Prods. Corp., 12 N.Y.2d 787, 788 (1962), where there was evidence that the employee's obesity was due to a permanent glandular condition. The same orthopedic surgeon whose testimony was relied upon by the insurer stated in one of his reports that it was his opinion that the problem was "entirely to do with diet." He testified that he had not conducted any medical tests to determine the cause of the employee's obesity, and in another of his reports noted that the employee had gained twenty pounds since the last examination "so there can't be much of any effort given to reducing his weight."

As the insurer did not establish that the employee's obesity was "a known physical impairment which is due to any previous accident, disease or any congenital condition," it was not entitled to reimbursement from the Second Injury Fund.

Judgment affirmed.