Opinion
December 28, 1962
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal by an employer, a practicing physician specializing in radiology, and his carrier from a decision and award of the Workmen's Compensation Board contesting its finding that the payment of wages to an X-ray technician within the period of three years prior to the reopening on October 20, 1960 of three claims involving industrial injuries to her back with no loss of time which respectively were closed accordingly without awards on April 25, 1951, October 2, 1953 and May 7, 1954 constituted an advance payment of compensation within the meaning of section 25-a Work. Comp. of the Workmen's Compensation Law so as to relieve respondent Special Fund from liability for the first and second accidents. Less than seven years having elapsed since the date of the third accident, appellants do not dispute their liability for the percentage of the award attributed to it. In 1958 claimant developed backache and leg pain as the result of which she discontinued work for six weeks, for one week of which she was hospitalized. On September 8, 1960 she was operated for a ruptured intervertebral disc found to be causally related to the three previous accidents. Disablement for about seven months followed. During the periods of absence from work occasioned by these episodes, she was paid her full salary by the employer. There is testimony by the employer that these payments were made with knowledge, which must be deemed of professional stature, that the disabilities were attributable to the earlier accidents. Other statements by him that it was customary to pay claimant's salary during short absences from work for various reasons and that he "kept her salary going" as a reward for her faithfulness and loyalty presented only a factual question for resolution by the board. Substantial evidence supports its determination. ( Matter of Tulley v. American Radiator Standard Sanitary Corp., 8 A.D.2d 564.) Decision and awards unanimously affirmed, with costs to the Special Fund for Reopened Cases.