Opinion
279 A.D. 813 109 N.Y.S.2d 133 In the Matter of the Claim of LOUIS URBANIAK, Respondent, v. BELL AIRCRAFT CORPORATION et al., Appellants. WORKMEN'S COMPENSATION BOARD, Respondent. Supreme Court of New York, Third Department. January 9, 1952
Appeal by employer and its insurance carrier from an award of disability benefits. Claimant alleges that he was injured on April 11, 1945. He filed no claim for compensation until April 12, 1948, some three years later. The only question raised on this appeal is whether the employer made an advance payment of compensation which excused the late filing. There is evidence that claimant appeared at the employer's first aid department complaining of a sore back. His back was rubbed and he was sent home in a company car with advice to see his personal physician. This was a service furnished to all employees, irrespective of the cause of the discomfort. Claimant applied for and obtained for a time 'sick benefits' under a group insurance policy. The 'sick benefits' could not be obtained if claimant were entitled to compensation. They may not be considered a recognition of the right to compensation. In his application for these benefits claimant wrote 'Pain in back', but mentioned no accident, although the application inquired about accidents. These benefits paid under such circumstances may not be considered advance payment of compensation. When claimant returned to work he was given lighter work at the same pay. It is undisputed, however, that this was due to lack of work at the old job and not to his physical condition. We find no substantial evidence in the record of any benefit accorded to claimant by the employer with knowledge that it bore any relation to compensation. To waive the time limitation some such knowledge is necessary. ( Matter of Lombardo v. Endicott Johnson Corp., 275 A.D. 18.) Award reversed, on the law, and the claim dismissed, with costs to appellants against the Workmen's Compensation Board.
Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur.