Opinion
June 28, 1967
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board which relieved the Special Fund for Reopened Cases (§ 25-a) from liability. The accident involved in this case occurred on September 17, 1935. The board found that on or about July 1, 1947 the claimant retired on an accidental disability pension and that thereafter the carrier paid claimant's compensation to the Retirement System. The last payment of compensation by the insurance carrier was on August 1, 1960 but the accidental retirement pension benefits were still being paid to claimant as of the last hearing in this case. The board ruled that the retirement benefits were a payment of compensation and thus more than three years had not elapsed since the last payment of compensation as required by the statute and that the carrier was liable for a continuance of medical treatment based upon an application by the claimant and which was substantiated by a medical report. The appellants take the position that the claimant was never entitled to compensation after August 1, 1960 and, therefore, the disability retirement benefits could not be considered as payment of compensation. Although the appellants in their brief indicate that there may be some question as to whether the retirement benefits were for regular retirement or for disability retirement, the carrier in its application for review dated October 26, 1965 stated that it was "an accidental disability pension" and further asserted that the compensation awarded to claimant after such retirement "was an offset against his retirement benefits". It thus appears that the pension was related to the compensable accident. In Matter of Pignataro v. Westchester Parkway Police Dept. ( 5 A.D.2d 523, 526, affd. 7 N.Y.2d 848) this court held that disability retirement benefits under circumstances such as here constitute payment of compensation. The court stated: "It has been established public policy for many years that payments of accidental disability retirement pensions and for compensation benefits arising from the same injury are prohibited, except as to medical treatment and funeral expenses". The issue of entitlement to compensation payments, as mentioned in the carrier's application for review, is not of consequence since entitlement to benefits has nothing to do with the question of whether or not such benefits have in fact been paid. There can be no doubt that the claimant was receiving payments as a result of the original accident and thus was being compensated for the same regardless of entitlement under the Workmen's Compensation Law. The payment of compensation has no relationship to entitlement unless the payor wishes to stop paying the same. The fact that the employer may not be able to stop paying compensation because the accidental retirement pension payment constitutes a payment of compensation within the meaning of the statute (§ 25-a) is something that insurance carriers should consider in accepting the risk. We would note, as we did in Pignataro ( supra), that the present controversy does not involve the Retirement Fund, but is between the State Insurance Fund and the Special Fund. Decision affirmed, with costs to respondent Special Fund. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Herlihy, J.