Claim of Hengel v. John Frederici & Sons , 3 A.D.2d 885 ( 1957 )

Memorandum by the Court. Appeal by the employer and carrier from a decision and award of the Workmen’s Compensation Board which denied reimbursement to appellants from the Special Disability Fund under subdivision 8 of section 15, on the sole ground that a claim for reimbursement was not timely filed.

Claimant suffered an industrial accident on April 15, 1947, and was off work for one week as a result thereof. Thereafter he worked intermittently. The employer had full knowledge of these facts. However, on the earlier hearings disability awards were made, the first award covering a period commencing August 22, 1947. Within 104 weeks after August 22, 1947, on June 22, 1949, appellants filed a claim for reimbursement. Later, at a hearing on May 18, 1954, a referee discovered that no awards had been made for disability earlier than August 22, 1947, and the date of disability was fixed at April 16, 1947. Obviously the claim for reimbursement was filed more than 104 weeks after that date. So far as pertinent here, paragraph (f) of subdivision 8 of section 15 provides that “claim of the right to such reimbursement shall be filed with the board in writing * * * but in no ease more than one hundred four weeks after the date of disability

Appellants relied before the board and rely here on the case of Matter of De Maroney v. Bennett Junior Coll. (282 App. Div. 538, 539), wherein this court said “it is apparent from the whole scheme of the statute that the 104 weeks run only during a period in which compensation is due”. However, that theory was disapproved in Matter of Mastrodonato v. Pfaudler Co. (307 N. Y. 592), as we expressly recognized in Matter of Lambright v. St. Luke’s Hosp. (3 A D 2d 613), where the period of limitation had expired before a claim for compensation had been filed and before the carrier knew of the disability. Here there is substantial evidence to support the finding of the board that the date of disability was April 16, 1947, and that the claim for reimbursement was made “more than 104 weeks” thereafter and consequently was not timely under paragraph (f) of the section. If such a result seems unfair because of the delayed determination of the date of disability, the remedy is legislative.