Opinion
December 31, 1992
Appeal from the Workers' Compensation Board.
Initially, we find that even if the employer's contention that claimant's appeal to the Workers' Compensation Board was untimely is correct, the Board has ample authority to entertain an untimely appeal (see, Matter of Scanlon v State Ins. Fund, 141 A.D.2d 902, lv denied, appeal dismissed 73 N.Y.2d 1009).
Turning to claimant's arguments, we cannot accept his assertion that the employer who paid his wages as a result of a work-related injury sustained in his previous employment was not entitled to reimbursement under Workers' Compensation Law § 25 (4) (a). This is not a situation where "reimbursement of the advances will * * * benefit the employer at claimant's expense" (Matter of Moses v City of New York Dept. of Traffic, 173 A.D.2d 920; see, Matter of Morgan v New York State Dev. Ctr., 166 A.D.2d 765). As this Court has previously stated, an "employer is entitled to reimbursement unless such reimbursement would achieve a disproportionate result, either to the employer or employee" (Matter of Jones v Chevrolet-Tonawanda Div., GMC, 87 A.D.2d 924, 925, affd 57 N.Y.2d 851 [emphasis supplied]; see, Matter of Jefferson v Bronx Psychiatric Ctr., 55 N.Y.2d 69, 71). As the Board pointed out in this case, if reimbursement were denied claimant would then receive both workers' compensation benefits and his full salary for the same period of time. This would result in an imbalance favorable to the employee, thus requiring that the employer be reimbursed (see, Matter of Jones v Chevrolet-Tonawanda Div., GMC, supra). We also fail to find any support for claimant's contention that Workers' Compensation Law § 25 (4) (a) bars reimbursement of a subsequent employer. Claimant's remaining contentions have been considered and rejected as unpersuasive.
Weiss, P.J., Levine, Mahoney, Casey and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.