Opinion
September 10, 1998
Appeal from the Workers' Compensation Board.
In November 1990, claimant was injured while she was working as a chambermaid for Holiday Inn (hereinafter the employer) when she slipped and fell in the employer's parking lot. In January 1995, claimant filed an application for workers' compensation benefits. At the first hearing on her claim, the employer argued that the claim was not timely filed. The Workers' Compensation Law Judge dismissed the claim as untimely and the Workers' Compensation Board affirmed that decision. Claimant appeals.
Although claimant does not contest that her claim was filed more than two years after her original injury, she claims that the two-year time frame for filing her claim was waived because her employer was aware of her injury and directed her to charge her medical bills to her employer-paid medical insurance ( see, Workers' Compensation Law § 28 Work. Comp.). The payment or providing of medical treatment has been recognized to be advanced compensation for purposes of waiving the Statute of Limitations for a workers' compensation benefit claim so long as the compensation was made to imply a recognition of liability on the part of the employer ( see, Matter of Loiacono v. Sears, Roebuck Co., 230 A.D.2d 351, 353). In our view, payments made by an employer-paid insurance plan toward medical bills do not constitute advanced compensation as these payments would be made by an employee's medical insurance regardless of whether the employer has recognized liability ( see, Matter of Iovino v. Western Elec. Co., 71 A.D.2d 717; Matter of Kaszas v. Monticello Cent. School, 53 A.D.2d 940). As the employer made no payments toward claimant's medical bills that were not covered by her insurance ( compare, Matter of Feigenbaum v. Logimetrics, Inc., 209 A.D.2d 793), provided no medical treatment ( see, Matter of Moore v. Oneida, Ltd., 124 A.D.2d 389, lv denied 69 N.Y.2d 609; Matter of Romano v. Franklin Gen. Hosp., 108 A.D.2d 971) and claimant received disability benefits, 253 rather than being paid by the employer for any lost time, substantial evidence supports the Board's decision that no advanced compensation was made which would constitute a waiver of the two-year Statute of Limitations. Furthermore, we reject claimant's contention that her disability was a result of an occupational disease rather than an accident ( see generally, Matter of Artiste v. Kingsbrook Jewish Med. Ctr., 221 A.D.2d 81).
Cardona, P.J., Mikoll, Crew III, White and Yesawich Jr., JJ., concur.
Ordered that the decision is affirmed, without costs.