Opinion
December 29, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal by the Special Fund for Reopened Cases from a decision and award of the Workmen's Compensation Board, reversing a decision of the Referee, and charging the Special Fund with liability. On October 7, 1949, claimant while employed as a painter by the First National City Bank, sustained a lumbosacral sprain as a result of which he was unable to return to work for four months. In August of 1957 claimant reinjured his back at the site of the 1949 injury. The sole question raised here is whether the board was correct in holding that the compensation benefits for the 1957 injury should be charged to the Special Fund (Workmen's Compensation Law, § 25-a). It is conceded that more than seven years have elapsed since the accident. Appellant urges, however, that payments voluntarily made by the employer during the years 1955, 1956 and 1957 were in the nature of compensation and thus since these payments were made within three years of the application in 1957 it is not liable. It is not disputed that these payments were made with full knowledge that the disability was attributable to the 1949 injury. Respondent employer testified, however, that these payments were made in accordance with its policy to compensate its employees for a certain amount of "sick leave with pay", depending on their length of service, and irrespective of the cause of said absence. Not all payments of wages as sick leave, or under an employee welfare plan, are of necessity advance payments of compensation. ( Matter of Murray v. Packard, 2 A.D.2d 907.) The board found that these payments were not intended by the employer as advance payments of compensation. This determination is supported by the record. Matter of Tulley v. American Radiator Standard Sanitary Corporation ( 8 A.D.2d 564) is inapposite in the instant case because there the board on substantial evidence decided the factual issue the other way and we affirmed. Decision and award unanimously affirmed, with costs to the respondent-carrier.