Decided June 16, 1981 Appeal from (3d dept: 78 A.D.2d 922) MOTIONS FOR LEAVE TO APPEAL
The determination of whether advance payments have been made presents a factual matter for Board resolution (Matter of Urban v NYS Letchworth Vil., 91 A.D.2d 1090). However, payments made pursuant to a sick leave plan regardless of cause are not advance payments of compensation (Matter of Brock v Great A P Tea Co., 84 A.D.2d 645, 646, appeal withdrawn 56 N.Y.2d 593; Matter of Krystofik v General Elec. Co., 54 A.D.2d 137, 139). There must be some acknowledgment or recognition of liability in order for continued remuneration to constitute an advance payment (see, Matter of Schultz v Voltro Distribs., 92 A.D.2d 990, 991). Any payments that claimant received due to accumulated sick leave are clearly not advance payments (see, Matter of Jefferson v Bronx Psychiatric Center, 78 A.D.2d 922, affd 55 N.Y.2d 69; Matter of Rivard v New York State Police State Campus, 46 A.D.2d 34, 36). The issue distills to whether an advance payment was made when claimant was treated at the employer's clinic during working hours and was paid full wages.
There must be a reversal. "[I]t is well established that payments by an employer which result solely from a finding of disability regardless of its cause are not advance payments of compensation" (Matter of Krystofik v. General Elec. Co., 54 A.D.2d 137, 139). Wages paid and credited to accumulated sick leave are not payments of compensation (see Matter of Jefferson v. Bronx Psychiatric Center, 78 A.D.2d 922, mot for lv to app granted 54 N.Y.2d 601; Matter of Rivard v. New York State Police Campus, 46 A.D.2d 34). Where, as here, the payments are made pursuant to a sick-leave plan which covers disability irrespective of the cause, the payments do not constitute compensation within the meaning of subdivision 1 of section 25-a of the Workers' Compensation Law (compare Matter of Stewart v. First Nat. City Bank of N.Y., 15 A.D.2d 622, with Matter of Krosky v. Shell Oil Co., 26 A.D.2d 847). Decision reversed, with costs to the employer and its insurance carrier against the Special Fund, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent herewith. Mahoney, P.J., Sweeney, Kane, Casey and Weiss, JJ., concur.
Payments made under such a plan constitute an advance payment of compensation (see Matter of Krosky v. Shell Oil Co., 26 A.D.2d 847), and are to be distinguished from payments made pursuant to a plan which covers disability irrespective of the cause (see, e.g., Matter of Brock v. Great A P Tea Co., 84 A.D.2d 645). Upon expiration of the 27 weeks, the plan allows the injured employee to continue to receive full wages, but only by drawing on accumulated sick leave. However, wages paid and charged to sick leave accumulated pursuant to the terms of a collective bargaining agreement are not reimbursable under section 25 (subd 4, par [a]) of the Workers' Compensation Law (Matter of Jefferson v. Bronx Psychiatric Center, 78 A.D.2d 922, mot for lv to app granted 54 N.Y.2d 601). The rationale for this principle is that where, as here, sick leave is accumulated pursuant to the terms of a collective bargaining agreement, wages paid and charged to such leave for work-related disability are not truly voluntary advance payments of compensation, but rather are compulsory payments pursuant to an obligation previously assumed by the employer (supra). Accordingly, the board erred insofar as it allowed reimbursement for the 23 days of wages paid and charged to claimant's accumulated sick leave.