Claim of Hanavan v. University of Buffalo , 174 N.Y.S.2d 152 ( 1958 )

Appeal by claimant from a decision of the Workmen’s Compensation Board disallowing her claim for disability benefits on the ground that the claim therefor was not timely filed. It is without question that the claim for compensation was not filed for more than four years after the date of disablement. The only real issue on this appeal is whether the employer waived the provisions of section 28 of the Workmen’s Compensation Law by the advance payment of compensation. Claimant had suffered from pulmonary tuberculosis as early as 1943 while she was a medical student at the University of Buffalo. She was employed by the employer in September, 1948 as a medical technician. She resigned on March 6, 1959, and her resignation was accepted on March 15,1959. She was thus paid for nine days after she actually stopped work. This is one element which is claimed to be advance payment of compensation. It appears that this was the usual custom of the employer to continue payment of salaries until the end of the present pay period in all eases, even when an employee died. Dr. Stewart, a professor of surgery at the University of Buffalo and head of the department of surgery at the Edward J. Meyer Memorial Hospital, performed surgery upon claimant for a resection of the left lung in the Spring of 1951. This was done at the request of claimant. Ho payment was made by the employer for any medical care or hospitalization for the claimant. The claim as finally filed claimed the “ incurrence and aggravation” of the tubercular condition. There is strong evidence in the record that the employer had no knowledge that claimant’s condition was claimed to be connected with her employment until shortly before the written claim was filed. Upon this record we cannot say as a matter of law that there was an advance payment of compensation and that the requirements of section 28 were waived. Decision unanimously affirmed, without costs. Present — Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.