Claim of Cook v. Buffalo General Hospital

127 N.E.2d 66, 308 N.Y. 480, 1955 N.Y. LEXIS 977

• Court: New York Court of Appeals
• Decided: May 26, 1955
• Status: Published

Opinions

Desmond, J.

Claimant, a nurse, was, by the award here appealed from, allowed workmen’s compensation because of disability from pulmonary tuberculosis contracted at Buffalo General Hospital while claimant was in training there, in 1945 and 1946, as a student nurse. Claimant, in 1943, had, as a student, entered Children’s Hospital School of Nursing, another Buffalo institution, but in 1945 she was sent, for part of her training, to Buffalo General Hospital. It was not until after her return to, and later graduation from, Children’s Hospital that the disease and disablement were discovered. The board properly found that the disablement occurred at Buffalo General Hospital, that the disease w&§ contracted by reason of contact with a tubercular patient there, that it was due to the nature of her employment there, and that, at that time, Children’s Hospital was her “general employer” and Buffalo General Hospital was her * ‘ special employer ’ ’. The board made its award against the special employer only. Although claimant had not filed a claim against that special employer within the two-year period fixed by section 28 of the Workmen’s Compensation Law, the general employer (Children’s Hospital) had, within that time, made an “ advance payment ” of compensation to claimant in the form of medical treatment and hospital care. The board held that “ such advance payment is binding on the Buffalo General Hospital, the special employer, as well.”

It is not disputed that the furnishing’ of medical care to an injured employee is, ordinarily, such an ‘ ‘ advance payment ’ ’ of compensation as makes unnecessary the filing by him of a formal claim (Matter of Gallahan v. Papec Mach. Co., 263 App. Div. 918, affd. 288 N. Y. 726). But appellants here, pointing out that claimant’s hospital care after she became.disabled was provided not by appellant Buffalo General Hospital, but by Children’s Hospital, insist that it may not serve as a substitute for the filing of a claim against that appellant. We do not agree. In Workmen’s Compensation Law, as at common law, ‘ ‘ The fact that a workman has a general and a special employer is not inconsistent with the relation of employer and employee between both of them and himself ” (Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 275). Both together are his employer, and we know of no reason why notice to one, or claim against one, or advance payment by one, should not stop running the section 28 time limitation as to both (see Matter of Celli v. Central Islip State Hosp., 276 App. Div. 802). Certainly, the language of section 28, “ No case in which an advance payment is made to an employee * * * shall be barred by the failure of the employee * * * to file a claim ”, is broad enough to make effective for the purpose an “ advance payment ” by either employer, or by both.

Appellants make much of the “ inconsistency ” between this decision and the decision in Matter of Pogue v. Crouse Irving Hosp. (281 App. Div. 931, motion for leave to appeal denied 306 N. Y. 979). In each instance, a student nurse contracted tuberculosis during a special employment, and each was given hospital care by the general employer. However, claimant Pogue’s award was against the general employer alone, while this present claimant was awarded compensation against the special employer alone. But such an inconsistency calls for no explanation from us, and certainly does not justify a reversal. It is as well settled as anything in the law can be that workmen’s compensation may be ordered paid by the general employer or the special employer, or both (Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 276, supra). Having announced that the board has power to make the award against either or both, the courts cannot complain if the board exercises the power, case by case, as it sees fit.

The order should be affirmed, with costs.