Opinion
March 12, 1952.
Claimant sustained a compensable accidental injury on December 7, 1938, and compensation was awarded and paid to him for a period of disability, the last payment being made on December 14, 1940. On March 3, 1949, claimant became again disabled as a result of his previous injury. On March 24, 1949, claimant filed with the Workmen's Compensation Board an application to reopen his claim, and the application was granted and the case reopened on May 3, 1949. By check dated April 26, 1949, the employer paid claimant $63.42 as sick benefits, pursuant to the terms of a contract with the union which required such payment. The only question presented is whether this payment was a payment of compensation sufficient to discharge the Special Fund for Reopened Cases from liability. This was not a payment of wages. It was not intended as a payment of compensation, and was not even a voluntary payment. It was a compulsory payment made in fulfillment of an enforcible legal obligation under the contract with the union. To constitute a payment of compensation which in effect acts as a waiver or attaches any additional liability to the employer, the payment must have been made voluntarily and with some knowledge of its effect. ( Matter of Lombardo v. Endicott Johnson Corp., 275 App. Div. 18.) Moreover, this payment is ineffective to discharge the Special Fund for Reopened Cases in any event, because it was made after the application to reopen was filed. Section 25-a Work. Comp. of the Workmen's Compensation Law clearly imposes liability upon the Special Fund for Reopened Cases when an application for compensation is made after a lapse of seven years from the date of injury and also a lapse of three years from the date of the last payment of compensation. Award reversed on the law, insofar as it discharges the Special Fund for Reopened Cases, and the case remitted to the Workmen's Compensation Board to make an award accordingly, with costs to the appellants against the Workmen's Compensation Board. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.