Claim of Olivey v. Schine Malone Corp.

Appellate Division of the Supreme Court of New York

Claim of Olivey v. Schine Malone Corp.

281 A.D. 784, 118 N.Y.S.2d 562, 1953 N.Y. App. Div. LEXIS 3281

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 14, 1953

StatusPublished

Cited by3 cases

This text of 281 A.D. 784 (Claim of Olivey v. Schine Malone Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Olivey v. Schine Malone Corp., 281 A.D. 784, 118 N.Y.S.2d 562, 1953 N.Y. App. Div. LEXIS 3281 (N.Y. Ct. App. 1953).

Pincite

Opinion

Appeal by an employer and its insurance carrier from an award of compensation. Claimant was employed at a moving picture theatre. Some time in the fall of 1947 he was lifting and piling pails of popcorn seasoning in the cellar of the theatre. He alleged that one of the pails he was lifting slipped and he felt a pain in his left side. After about an hour and a half the pain subsided and he made no report of any accident to his employer. Some four years later, and on the 12th day of March, 1951, he stopped working and was operated on for a left inguinal hernia. Before he entered the hospital he advised his employer as to his condition and his opinion that such condition was the result of the alleged accident in 1947. The employer paid his full wages while he was disabled. Appellants urge here that the award was improper because no claim for compensation was filed within two years after the alleged accident. The statute provides, however, that where an advance payment of compensation is made an employee shall not be barred from compensation for failure to file a claim. (Workmen’s Compensation Law, § 28.) The issue here is whether the payment of wages during claimant’s disability was an advance payment of compensation. We think the board correctly determined that such payments were advance compensation. The employer asked for reimbursement and the award provides for reimbursement of the full amount of wages paid less the waiting period. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [See post, p. 915.]

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Appeal by an employer and its insurance carrier from an award of compensation. Claimant was employed at a moving picture theatre. Some time in the fall of 1947 he was lifting and piling pails of popcorn seasoning in the cellar of the theatre. He alleged that one of the pails he was lifting slipped and he felt a pain in his left side. After about an hour and a half the pain subsided and he made no report of any accident to his employer. Some four years later, and on the 12th day of March, 1951, he stopped working and was operated on for a left inguinal hernia. Before he entered the hospital he advised his employer as to his condition and his opinion that such condition was the result of the alleged accident in 1947. The employer paid his full wages while he was disabled. Appellants urge here that the award was improper because no claim for compensation was filed within two years after the alleged accident. The statute provides, however, that where an advance payment of compensation is made an employee shall not be barred from compensation for failure to file a claim. (Workmen’s Compensation Law, § 28.) The issue here is whether the payment of wages during claimant’s disability was an advance payment of compensation. We think the board correctly determined that such payments were advance compensation. The employer asked for reimbursement and the award provides for reimbursement of the full amount of wages paid less the waiting period. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [See post, p. 915.]

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281 A.D. 784, 118 N.Y.S.2d 562, 1953 N.Y. App. Div. LEXIS 3281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-olivey-v-schine-malone-corp-nyappdiv-1953.

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