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Matter of Dorfer v. William Summerhays Sons

Appellate Division of the Supreme Court of New York, Third Department
Oct 6, 1955
286 App. Div. 1053 (N.Y. App. Div. 1955)

Opinion

October 6, 1955.

Appeal from Workmen's Compensation Board.

Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.


Claimant was injured in an industrial accident on December 4, 1934, and his injuries included a comminuted fracture of the tibia and fibula extending into the right knee joint. Surgical treatment to claimant's knee required the insertion of nails in the bone of the injured knee. A claim for compensation was filed and on December 1, 1937, the case was closed with a schedule award, and the carrier paid the balance of that award on December 17, 1937, after deducting certain proceeds of a third-party settlement. Claimant returned to work for the same employer some time in June, 1935, and continued to work for it until January, 1953, when he became totally disabled. There is proof however in the record that his injured leg bothered him during that period. On the night of October 17, 1952, his knee pained him a great deal and he found the surgical nail that had been inserted in his knee protruding from the flesh. He pulled it out, and the following day went to see his physician for treatment. Three days later, October 20, 1952, claimant stayed home from work for a whole day because of pain in his leg and he so reported to his employer. The evening of that day he received medical treatment and a month later, November 20, 1952, to be exact, he took two hours off in the morning from his work, with permission of his employer, to have x rays taken of his knee by a physician. Claimant was paid his full wages for the day he remained at home on October 20, 1952, and also for the time he lost from work on November 20, 1952, and therein lays the crux of this appeal. The board has found such wages to be payments of compensation sufficient to toll the limitations of the statutes (Workmen's Compensation Law, §§ 25-a, 123); and hence that the employer and carrier were liable and the Special Fund should be relieved. On January 21, 1953, claimant filed an application with the board to reopen his claim. Later this was amended but the amendment has no significance so far as tolling the statute is concerned. If the finding of the board as to advance payments of compensation is sound it follows of course that the application to reopen was made within three years after the last payment of compensation, so far as section 25-a is concerned, and within eight years so far as section 123 is concerned. In either event the Special Fund would not be liable. The payments upon which the board relied seemed trivial but we cannot say that its conclusion is erroneous as a matter of law. Payments of money are either compensation payments or they are not, and the amounts thereof have no significance. Here it is clear that claimant's condition in 1952 was a direct result of his accidental injuries sustained many years before. It is equally clear that the employer knew this, and also knew that claimant was taking time off because of such related condition. With this knowledge it paid his full wages for services it did not receive, and hence we see no basis for holding as a matter of law that such payments were not in the nature of advance compensation. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.


Summaries of

Matter of Dorfer v. William Summerhays Sons

Appellate Division of the Supreme Court of New York, Third Department
Oct 6, 1955
286 App. Div. 1053 (N.Y. App. Div. 1955)
Case details for

Matter of Dorfer v. William Summerhays Sons

Case Details

Full title:In the Matter of the Claim of ARTHUR J. DORFER, Respondent, against…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Oct 6, 1955

Citations

286 App. Div. 1053 (N.Y. App. Div. 1955)

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