Claim of Zumbo v. Scarsdale Bus Corp.

Reynolds, J. These are appeals by the employer and its insurance carrier from decisions of the Workmen’s Compensation Board awarding the claimant benefits for a back injury. Claimant sustained an accidental injury to her back in January of 1968 while in the course of employment. Although she reported the same to her employer, she did not file her claim until April 20, 1970, more than two years after the injury. On November 6, 1970 the appellants filed a written notice of controversy with the Workmen’s Compensation Board raising the question of “no claim filed ” as part of the defense. At the first hearing on claimant’s claim held on November 16, 1970 the appellants immediately raised the issue of untimeliness. At this point there clearly was no basis to find the claim timely and it was thus barred by section.28 of the Workmen’s Compensation Law. However, on December 20, 1970, some eight months after the filing of the claim, the employer, allegedly as an accommodation to a reliable employee, paid a medical bill of the claimant relating to the claimed injury. The board has. found this to constitute an advance payment and thus found section 28 not a bar to the claim. We cannot agree. It could not be held to have been an “ advance ” payment, having been made' after the time prescribed in section 28 had already run and also after the filing of the claim which appellants had controverted on the basis of the timeliness of the filing of the claim (3 Larson’s Workmen’s Compensation Law, § 78.43 [b], pp. 92-94). As Larson states in the above-cited section: “ Once the claim has been barred by the passage of time, it will not be revived and a new period will not be set in motion by the furnishing of medical service years after the injury. The. objective of the statute being to protect the claimant who reasonably refrains from making claim because of the receipt of benefits voluntarily supplied, no claimant can allege that his failure to make timely application was excused by something that happened after the claim was already barred. Moreover, since the employer was under no obligation to furnish such benefits once the right to them was barred, it cannot be said that he provided them as voluntary compensation payments.” Matter of Hamilton v. Village of Lynbrook (284 N. Y. 613) is not here controlling since there were payments, “ in like manner as wages ” made “ immediately following the accident ” and prior to the filing of any claim. Matter of Crook [255] v. De Laval Separator Co. (3 A D 2d 773) and Matter of Olivey v. Schine Malone Corp. (281 App. Div. 784, mot. for lv. to app. den. 305 N. Y. 931) are also inapposite here since in both of those eases the payments were made prior to the filing of the claim and before the question of timeliness was legally disputed. Accordingly, the claim should have been found to, have been barred by section 28 and thus dismissed. The decisions should be reversed, and the claim dismissed, without costs.