Opinion
March 13, 1962
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by the employer and its insurance carrier from a decision and award of the Workmen's Compensation Board which denied the former's claim for reimbursement made pursuant to section 25 (subd. 4, par. [a]) of the Workmen's Compensation Law. On June 26, 1958 claimant, a sheet-metal worker, was operated for a left inguinal hernia, concededly occupational in origin, as the result of which he was disabled until September 8, 1958. An award of compensation was made for this period of disability. Between August 4 and August 24 claimant also received vacation pay from the employer pursuant to the provisions of a subsisting collective bargaining agreement executed by the company and the union representing its employees. The employer timely applied for reimbursement from the carrier at the compensation rate for the payment thus made which the board denied. The sole issue presented by this appeal is the employer's right to be reimbursed. The agreement between the employer and the union established a vacation plan for employees of the company and defined the prerequisites required to be fulfilled by an employee to achieve the right to its benefits. The extent of the vacation leave was dependent upon the length of his prior service with the company. Vacation pay was computed upon the average straight-line hourly earnings of each employee during the 44-week period beginning and ending with the payroll weeks of September 1, 1957 and June 29, 1958, respectively, multiplied by the average number of hours worked per week by the employee during that period. Provided an employee had worked at least five days during the computation period, time lost because of injury was counted as time worked for vacation eligibility purposes. The representatives of the company and the union arranged and announced the normal vacation period about a year in advance of its occurrence during which the plant shut down. In general all employees were then required to use the fixed vacation time. Their rights to the vacation pay indefeasibly vested on August 1, 1958, the date of its accrual. The payment to which claimant concededly became entitled on August 1 was achieved by reason of his fulfillment of the eligibility requirements of the collective bargaining agreement. It was wholly unrelated to his disability except that by fortuitous circumstance the disablement and vacation periods in part coincided. The board found that the vacation pay constituted a bonus for past services rendered and, in effect, that it was neither an advance payment of compensation nor a payment to the employee in like manner as wages during the period of his disability within the purview of the reimbursement statute. We think there was substantial evidence to sustain its findings. For obvious reasons this conclusion renders unavailing the double benefits theory as a basis for reimbursement. (Cf. Matter of Herring v. Great Kills Moving Storage, 7 A.D.2d 797, motion for leave to appeal denied 6 N.Y.2d 705.) Our decision in Matter of Lynch v. Board of Educ. ( 1 A.D.2d 362, affd. 3 N.Y.2d 871) where reimbursement of the employer was ordered is not controlling. There in addition to a compensation award claimant because of her industrially related disability was paid her regular salary at the end of each payroll period which was charged to sick leave and vacation allowances both of which turned out to be nebulous for cash allowance purposes. In the instant case claimant received the vested vacation payment not because he was disabled but solely for the reason that the provisions of the collective bargaining agreement, whose eligibility requirements he had sufficed, obligated the employer to make it. Decision unanimously affirmed, with costs to the Workmen's Compensation Board.