Claim of Tulley v. American Radiator & Standard Sanitary Corp.

| N.Y. App. Div. | Mar 11, 1959

Appeal by a self-insured employer from a decision and award of the Workmen’s Compensation Board. Appellant contests the finding that its payment of wages within the period of three years prior to the reopening of the case constituted a payment of compensation within the meaning of section 25-a of the Workmen’s Compensation Law, so as to relieve the respondent Special Fund. Appellant asserts that the payments were made pursuant to its established policy of paying supervisory personnel when off from work and urges that the board’s decision should therefore be reversed upon the authority of our decision in Matter of Murray v. Packard (2 A D 2d 907) in which we held that: “The established custom of paying one week’s full salary to all employees absent because of disability does not alone furnish justification for the board’s finding that such payment constituted a payment of compensation.” Pursuant to such custom, the claimant in the Murray case was paid his regular wages for the first of three weeks of disability. Assuming proof of the custom for which appellant contends, the board was warranted in finding no parallel in this case of a self-insured employer making payments of wages for periods of disability aggregating more than 13 weeks and, as to each period, promptly demanding reimbursement from respondent Special Fund. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present- — Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.