Opinion
June 16, 1955.
Appeal by the employer and carrier from a decision and award directing the payment of medical expenses incurred by claimant. In 1932, claimant, a member of the New York State Police, sustained accidental injuries which, he asserts, included an injury to the lower part of his back. He remained at his barracks for two weeks and then returned to active duty. Following the filing of a report of injury and a notice of controversy, the case appeared upon board calendars six times in 1937 and 1938. Claimant appeared upon one of the hearings but failed to appear upon any of the others, although he received notices thereof. He claims he was busy at the particular times and could not attend. At the last scheduled hearing in 1938, the referee directed the case to be marked closed for nonappearance of claimant. In 1953, claimant's application to reopen the claim was granted and upon the hearing, claimant testified that back pain started in 1940, that two or three years thereafter he was assigned as bodyguard to the Governor, an assignment which had continued to the time of the hearing; that on several occasions in the summer of 1952, while accompanying the Governor on a golf course he experienced pain and the Governor suggested that he rest at the clubhouse near the course, that in the autumn of 1952, he went to see the troop physician at the suggestion of a superior officer who arranged transportation and that at all times he was paid his full wages. Section 123 Work. Comp. of the Workmen's Compensation Law provides, in part, "no claim for compensation * * * that has been disallowed after a trial on the merits, or that has been otherwise disposed of without an award after the parties in interest have been given due notice of hearing or hearings and opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident". Subdivision 6 of section 25-a reads "Notwithstanding any other provision of this chapter, no award of compensation or death benefits shall be made against said special fund or against an employer or an insurance carrier where application therefor is made after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation." The board held the quoted provisions inapplicable upon the grounds that payment of full wages to the claimant for lighter work with full knowledge on the part of the employer, the medical treatment provided to the employee, the payment of full wages for time lost by the employee while obtaining medical treatment, and providing the claimant with transportation to the physician, all of which occurred in 1952, constituted payment of compensation. Subdivision 6 of section 2 defines "`compensation'" as "the money allowance payable to an employee". "`Compensation'" does not mean wages paid for value received. Even though the claimant was allowed to rest on occasions and permitted to see a physician while on duty, there is nothing in the record to indicate that his services "were not fully worth to the employer the compensation paid therefor" ( Matter of Baker v. Standard Rolling Mills, 284 App. Div. 433, 436). Providing medical treatment or care does not constitute payment of compensation under section 25-a. (Workmen's Compensation Law, § 13-a.) The finding that there was a payment of compensation to the claimant during 1952, cannot be sustained. More than eighteen years have elapsed from the date of injury and over eight years have elapsed from the last payment of compensation. In 1938, the claim for compensation was "disposed of without an award" after opportunity to be heard was given and more than seven years have elapsed from the date of accident. The present claim is barred by the time limitations contained in sections 25-a and 123. Decision and award reversed and claim dismissed, with costs against the Workmen's Compensation Board. Foster, P.J., Coon, Halpern, Imrie and Zeller, JJ., concur.