Opinion
November 12, 1970
Appeal from a decision of the Workmen's Compensation Board, filed November 3, 1969, which determined that the employer was not entitled to reimbursement for wages paid claimant during the period of disability. The employer is not entitled to recovery since the statute makes reimbursement conditional upon the employer's filing a claim therefor prior to the time the award of compensation is made, a condition not complied with here (Workmen's Compensation Law, § 25, subd. 4; Matter of Wrubel v. Surprise Press, 277 App. Div. 192, 193; Matter of Poveromo v. Taylor, 275 App. Div. 518, affd. 301 N.Y. 513). The board has found that no request for reimbursement was made or claim therefor filed prior to the hearing when the award for schedule losses of certain fingers was made. Appellants' contention as to unconstitutionality is without merit (N.Y. Const., art. I, § 18; Matter of Toomey v. New York State Legislature, 2 N.Y.2d 446, 448; Matter of Gormeley v. New York Daily News, 30 A.D.2d 16, 19, affd. 24 N.Y.2d 867). The board has found that no request for reimbursement was made or claim therefor filed prior to the hearing when the award for scheduled loss of certain fingers was made. Decision affirmed, with costs to the Workmen's Compensation Board. Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur. Herlihy, P.J., dissents and votes to remit in the following memorandum: I agree with the majority that the constitutional issues attempted to be raised are without merit. However, the majority appear to be holding that an actual claim must be filed prior to the making of an award by a Referee when as a matter of law all that is necessary is that the board have notice prior to an award that wages are being paid during the period of disability from which notice the board may infer a request for reimbursement. (See Matter of White v. Barrett, 5 A.D.2d 909, mot. for lv. to app. den. 5 N.Y.2d 706; Matter of Herring v. Great Kills Moving Stor., 7 A.D.2d 797, 798, mot. for lv. to app. den. 6 N.Y.2d 705.) The appellants duly requested reconsideration by the board of the Referee action prior to the award being final pursuant to the provisions of section 23 Work. Comp. of the Workmen's Compensation Law. The shortened record utilized upon the present appeal contains a document at page 15 which was dated July 30, 1968 (13 days after the accident) which stated: "c [X] Lost time exceeds 7 days, but full wages being paid by employer during disability". (Emphasis supplied.) Subsequent reports by the carrier indicate that although disability began on July 17, 1968 and it did not controvert the claim, it did not begin payments until from August 12, 1968. The board has found that although the award was made at a hearing before the Referee on July 17, 1969 no reimbursement was then requested (orally) and that no reimbursement request was filed prior to the date of such hearing. The decision of the board does not mention the document referred to hereinabove which was notice to it that wages were being paid during the disability. It does not appear that the board panel gave any consideration to its power to consider such notice a request for reimbursement. "It is not the purpose of Workmen's Compensation Law that the employee should profit therefrom and in effect that has happened here through double benefits — both wages and compensation ( Matter of Birmingham v. City of Niagara Falls, 282 App. Div. 970)." ( Matter of Herring v. Great Kills Moving Stor., 7 A.D.2d 797, 798, supra.) It appears from the record that the insurance carrier is withholding the sum of $475.75, the amount of reimbursement, pending determination of this appeal. If the decision of the board is affirmed, it will, no doubt, be paid to the claimant resulting in double compensation, which the Workmen's Compensation Law does not generally sanction. Because of the failure of the board to set forth in its decision some consideration of the various documents in the record which were sufficient to give notice to the board that wages were in fact paid during the disability, the decision should be reversed and the matter remitted to the board for further consideration (cf. Matter of Dodge v. New York Tribune Co., 3 A.D.2d 614).