#### In the Matter of the Claim of Dominick Poveromo, Respondent, against J. H. Taylor et al., Appellants. Workmen's Compensation Board, Despondent.

Third Department,

June 28, 1949.

*Bernard Katzen,*General Attorney for State Insurance Fund *(Victor Fiddler*and *George J. Hayes*of counsel), for appellants.

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      *Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum*and *Daniel PolansJcy*of counsel), for Workmen’s Compensation Board, respondent.

Foster, P. J.

Appeal by employer and its insurance carrier from an award and decison of the Workmen’s Compensation Board which denied an application for reimbursement to an employer for a portion of wages paid to an employee during a period of.disability resulting from accidental injuries.

There is no dispute as to the facts. Wages were paid to an injured employee during a part of his disability. Reimbursement was denied by the Workmen’s Compensation Board upon the theory that a claim therefor was not filed before the award of compensation was made. This decision may appear inequitable but it is claimed on behalf of the board that it was made under the mandatory language of section 25 of the Workmen’s Compensation Law. This section provides in part: *“*If the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, he shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided his claim for reimbursement is filed before award of compensation is made, or if insured, by the insurance carrier at the direction of the board, unless he shall file a waiver of reimbursement with the chairman, in which event compensation shall be paid to the claimant notwithstanding the advanced payments ”.

This language is not too clear, but as we construe it an employer is bound to file a claim for reimbursement before an award is made or else he cannot recover in any instance. In the event he files such a claim but is not insured he may be reimbursed out of unpaid installments of compensation due. If he is insured, then he is to be reimbursed by the insurance carrier at the direction of the board. Finally, under either contingéncy, he will not receive reimbursement from either an unpaid installment of compensation due, or from the insurance carrier at the direction of the board, if he files a waiver of reimbursement. The primary requisite however for reimbursement is to file a claim before an award is made, and this the employer here failed to do.

We agree, therefore, with the construction placed upon the statute by the board, hence the award and decision should be affirmed, without costs.

Deyo, J.

(dissenting). As I read section 25 of the Workmen’s Compensation Law, the requirements that a claim for reimburse*520ment be filed before.the award for compensation is made, relates only to an uninsured employer who is seeking recoupment out of unpaid installments. It has no relation to the situation herein presented, where the employer seeks reimbursement from his insurance carrier. Under such" circumstances the statute provides that the board shall direct such reimbursement in the absence of a waiver thereof without regard to when the claim was filed. Concededly, there has been no waiver here.

Furthermore, the record discloses that the carrier specifically notified the board on three separate occasions that reimbursement was to be made to the employer: first, by its notice of May 10,1948, that compensation payments had begun, and later by its notices of June 4th and June 29th that payments had been suspended. I am of the opinion that these constituted a sufficient filing of a claim for reimbursement, if such filing be deemed a prerequisite. This court has but recently held that a demand for reimbursement appearing somewhat casually in the testimony of the employer, without further formality, constituted a sufficient filing of the claim to entitle its payment. *(Matter of Block*v. *Markham & Puffer,*270 App. Div. 969.) If that holding is to be followed, we must admit that there was a sufficient filing in the case at bar.

The award and decison should be modified and the matter remitted to the board, directing it to grant reimbursement to the employer in the sum of $59.27, with costs to the appellants.

Heffernan and Santry, JJ., concur with Foster, P. J.; Deyo, J., dissents, in an opinion in which Brewster, J., concurs.

Award and decision affirmed, without costs.