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Claim of Robinson v. New York Telephone Co.

60 A.D.2d 709 Court N.Y. App. Div. Decision date 1977-12-22 English

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p. 709
In the Matter of the Claim of Janet Robinson, Respondent, v New York Telephone Company, Appellant. Workmen’s Compensation Board, Respondent.

Appeal from a decision of the Workmen’s Compensation Board, filed May 7, 1976, which awarded benefits for a continuing disability during a period when the claimant also received vacation pay and, in fact, worked for three days. The board found that the claimant was disabled throughout the period in question and that finding was neither disputed in the appeal to the board not on this appeal. There is nothing in the record to indicate that the vacation pay was intended to be in lieu of compensation payments either factually or legally. It is well established that a claimant may receive both vacation pay and compensation benefits under such circumstances (Matter of Knaszak v Buffalo Forge Co., 15 AD2d 971 ; cf. Matter of Cleveland v American Mgt. Assn., 45 AD2d 506 ). The record does not establish that any claim for reimbursement was made by the appellant and the wages earned were likewise not in lieu of compensation. Since no

p. 710
claim for reimbursement was made, and the appellant has failed to establish that no disability existed, this appeal as to an award for reduced earnings has no substantial merit. Decision affirmed, with costs to the Workmen’s Compensation Board against the employer. Koreman, P. J., Greenblott, Sweeney, Mikoll and Herlihy, JJ., concur.

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