Opinion
December 21, 1970
Appeal from a decision of the Workmen's Compensation Board awarding claimant benefits under the Disability Benefits Law (Workmen's Compensation Law, art. 9). Claimant, a salesman, left work on July 27, 1968 due to illness. On September 9, 1968 claimant returned to work but because of his illness again stopped working on September 28, 1968 and thereafter filed the instant claim for disability benefits. The appellants opposed the granting of benefits on the basis that claimant had not worked four weeks in covered employment prior to becoming disabled on September 28. The board upheld the award of benefits finding that claimant "became disabled on July 27, 1968 when he stopped work due to illness" and that he "became immediately eligible for disability benefits when he returned to work for the employer on September 9, 1968." On this appeal appellants urge first that the board's conclusion that claimant became disabled on July 27, 1968 is not supported by substantial evidence. The board's finding as to disability was substantially the same as the Referee's and yet the Referee's determination was not contested by the appellants in their application for review to the board. Nowhere in that application do they allege a lack of medical evidence of disability on July 27, 1968. Accordingly, appellants are precluded from raising this issue here ( Matter of Gore v. City of Ogdensburg, 29 A.D.2d 599, mot. for lv. to app. den. 21 N.Y.2d 644; Matter of Hedlund v. United Exposition Decorating Co., 15 A.D.2d 973, mot. for lv. to app. den. 11 N.Y.2d 646). Appellants' main argument is that claimant was not eligible for benefits because section 203 and subdivision 7 of section 201 Work. Comp. of the Workmen's Compensation Law require that he have been employed for four or more consecutive weeks before he became eligible for benefits whereas here he worked only three weeks before leaving work on September 28. Section 203, however, provides that an "employee who returns to work with the same employer after an agreed and specified unpaid leave of absence * * * shall become eligible for benefits immediately with respect to such employment". This portion of section 203 was added in 1964 to make it clear that an employee who returns to work with the same employer under the specified conditions would be covered for benefits immediately (Memorandum of Commerce and Industry Association of New York, Inc., New York State Legislative Annual — 1964, p. 395). Here there is a factual dispute with contradictory testimony and thus issues of credibility as to whether the claimant in fact returned to work after an agreed and specified leave of absence. The resolution of this issue was for the board to determine ( Matter of Gabriel v. Gabriel Constr. Corp., 32 A.D.2d 600; Matter of Luftig v. Stevenson Pie Co., 23 A.D.2d 920, affd. 18 N.Y.2d 734), and we find no basis to disturb the board's decision in favor of the claimant. The fact that claimant returned to work at an earlier date than that agreed to and specified does not affect the result. The issue is whether there was an agreed and specified leave of absence. That the employee and employer agreed to shorten the leave of absence does not make it any less an agreed and specified leave. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.