Calendar Date: January 17, 2017
& Grey, LLP, Farmingdale (Sanjai Doobay of counsel), for
Cherry, Edson & Kelly, LLP, Melville (David W. Faber of
counsel), for Town of Hempstead, respondent.
Before: Peters, P.J., McCarthy, Egan Jr., Rose and Mulvey,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
October 26, 2015, which ruled, among other things, that the
employer was entitled to reimbursement for wages paid to
claimant during the period of disability.
a sanitation crew chief, injured his right ankle and foot
when he slipped at work on August 15, 2013. His claim was
later established and he was awarded disability benefits. As
relevant here, the self-insured employer paid claimant his
full weekly wages from August 16-17, 2013 and from August 19,
25, 2013. In November 2013, the employer filed a request for
reimbursement for those time periods, attesting that it had
paid claimant advanced wages of $8, 218.80 during that time.
The Workers' Compensation Law Judge determined that
claimant had a permanent partial disability with a 20%
schedule loss of use of his right foot, entitling him to 41
weeks of benefits totaling $32, 931.61, less payments made.
The Workers' Compensation Law Judge also granted the
employer's request for reimbursement against that
schedule award for the $8, 218.80 in wages paid to claimant.
The Board affirmed, and claimant appeals.
affirm. Workers' Compensation Law § 25 (4) (a)
provides that, "[i]f 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, [the
employer] shall be entitled to be reimbursed out of an unpaid
instal[l]ment or instal[l]ments of compensation due, provided
[the employer's] claim for reimbursement is filed before
[an] award of compensation is made."
"[R]eimbursement must be awarded to the employer unless
such reimbursement would achieve a disproportionate result,
either to the employer or employee" (Matter of Mott
v Central N.Y. Psychiatric Ctr., 113 A.D.3d 911, 911
 [internal quotation marks and citation omitted]),
which presents a question of fact for the Board (see
Matter of Monteleone v Town of N. Castle, 73 A.D.3d
1422, 1423 ). Claimant does not dispute that the
employer paid him wages for the period of his disability
prior to the schedule award and that the employer filed a
timely claim for reimbursement with the Board as required by
Workers' Compensation Law § 25 (4) (a) (compare
Matter of Iamiceli v American Tel. & Tel., 189
A.D.2d 1040, 1040-1041 ). Claimant challenges the
Board's reimbursement directive upon the ground that the
reimbursement here covers a period of time when there were no
awards of compensation made,  arguing that, as a
result, the employer is not entitled to reimbursement of
wages paid to claimant during those periods of time and that
the amount of reimbursement should be reduced.
under settled law, where, as here, a claimant ultimately
receives a schedule loss of use award, "an employer has
the right to reimbursement for the full amount of wages paid
during a claimant's period of disability from the
claimant's schedule award of worker[s'] compensation
benefits" (Matter of Hendrick v City of Albany
Police Dept., 227 A.D.2d 808, 808 ; accord
Matter of Burke v Verizon Servs. Group, 87 A.D.3d 1237,
1238 ; Matter of Monteleone v Town of North
Castle, 73 A.D.3d at 1423). Unlike an award of weekly
compensation for a disability, which is based upon the actual
period during which an employee is disabled from earning full
wages, liability for a schedule award arises as of the date
of the accident, and the weekly rate and number of weeks
specified in the schedule are merely the measure by which the
total amount of the award is calculated; while the decisions
often list the schedule award as covering certain dates, the
schedule award "is not allocable to any particular
period of disability" (Matter of LaCroix v Syracuse
Exec. Air Servs., Inc., 8 N.Y.3d 348, 356 
[internal quotation marks and citation omitted]; see
Matter of Cruz v City of N.Y. Dept. of Children's
Servs., 123 A.D.3d 1390, 1391 , lv denied
26 N.Y.3d 905');">26 N.Y.3d 905 ) and is "'independent of the
time an employee actually loses from work'"
(Matter of LaCroix v Syracuse Exec. Air Servs.,
Inc., 8 N.Y.3d at 356, quoting Matter of Landgrebe v
County of Westchester, 57 N.Y.2d 1, 6 ;
see Workers' Compensation Law § 15 ;
Matter of Briggs v Village of Hamilton, 136 A.D.2d
442, 444 ). Inasmuch as claimant received a schedule
award compensating him for the partial loss of use of his
right foot, the Board was correct in finding that the
employer was entitled to full reimbursement out of that award
for all of its advanced payment of wages to claimant during
that time (see Workers' Compensation Law §
25  [a]). The fact that a temporary disability award was
denied during part of that period based upon missing medical
evidence in the Board's record is not relevant to the
employer's entitlement to reimbursement.
Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur.
that the decision is affirmed, without costs.