Opinion
June 28, 1967
This is an appeal by the employer and its insurance carrier from a decision in favor of claimant which charged liability against appellants and relieved the Special Fund for Reopened Cases under section 25-a Work. Comp. of the Workmen's Compensation Law. Claimant was employed as a lineman and was injured on May 31, 1956 when he sustained burns due to an electric shock. He returned to work on November 27, 1956 and was given the job of inspecting poles and pole lines, was assigned the title of assistant to the superintendent and was paid his lineman's salary. The last award covered the period to November 27, 1956. The case was closed on January 26, 1960 and was reopened on July 23, 1963. It will be noted that the application to have the case reopened was made more than seven years after the date of the accident and more than three years from the date of the last payment of compensation. Section 25-a Work. Comp. of the Workmen's Compensation Law, dealing with the reopening of such claims, provides that under such circumstances the liability shall be that of the Special Fund. The board has found, however, that the employer in effect made advance payments of compensation "in that the claimant was given lighter work at the same wages at a job which was created for him" and discharged the Special Fund. When the claimant returned to work he was told he could take a day off whenever he so desired. The record shows that the employer allowed all employees seven paid days' absence a year and, although claimant was absent from work, his lost time never exceeded seven days in any year. The position given to the claimant was found to be a necessary one in 1958 or 1959 and it was then made a permanent position. He was able to fulfill the required duties. He subsequently left the employment and another man was assigned to his job. As we have said in Matter of Puglia v. Sing Sing Prison ( 3 A.D.2d 871), the testimony on the sole issue as to advance payments of compensation is too tenuous to rise to the dignity of substantial evidence. Claimant earned his hire and during this four-year period before the reopening, there was nothing gratuitous in the performance of his duties in this second position. ( Matter of Baker v. Standard Rolling Mills, 284 App. Div. 433.) There is nothing of substance which indicates that the employer did not receive full value for claimant's wages. Here, as in Matter of Schaffner v. General Motors Corp. ( 12 A.D.2d 556, 557), the "board's finding of compensation payments is neither within the spirit nor the letter of the Baker case". Decision reversed, with costs to appellants against the Special Fund for Reopened Cases, and matter remitted for further consideration. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gabrielli, J.