Claim of Milan v. Trico Products Corp.

423 N.E.2d 35, 53 N.Y.2d 867, 440 N.Y.S.2d 612, 1981 N.Y. LEXIS 2451

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Workers’ Compensation Board for further proceedings in accordance with this memorandum.

During the period of claimant’s total disability from June 7 to July 7,1977, Trico Products Corp., a self-insured employer, paid claimant his regular wage for the July 4 holiday, but did not pay disability for that day. Subsequently and after a hearing, claimant was awarded compensation for the period of disability, including the one-day holiday; Trico was denied the right to credit the holiday pay against the award. On review of that decision, the Workers’ Compensation Board affirmed the compensation award and determined further that the issue of holiday pay credit was not within the board’s jurisdiction as it was a private matter to be decided between the employer and employee. The Appellate Division affirmed.

On this record, it cannot be said as a matter of law that Trico’s claim for credit for the holiday pay does not come within the purview of section 25 (subd 4, par [a]) of the Workers’ Compensation Law, which provides for reimbursement to the employer for “payments to an employee in like manner as wages during any period of disability”. Thus, the Workers’ Compensation Board erroneously declined jurisdiction of Trico’s claim and the matter should be remitted for resolution of the claim in accordance with this memorandum.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.