Claim of Bauer v. Bauer's Restaurant

Appeal by the claimant-widow from a decision of the Workmen’s Compensation Board denying her death benefits on the ground that her claim was not filed within two years of her husband’s death as required by section 28 of the Workmen’s Compensation Law. The claim having been filed more than five years after her husband’s death, the sole issue raised is the propriety of the board’s determination that her payment of her husband’s funeral expenses did not also constitute an advance payment of compensation by her as his employer thus waiving the two-year filing requirement of section 28. This *872determination is factual and thus if supported by substantial evidence must be sustained. There is in the instant record no evidence that claimant-widow paid the funeral expenses as an employer with recognition that there existed a claim or liability (Matter of Buxbaum v. Cumberland Provision, 14 A D 2d 425, app. dsmd. 12 N Y 2d 670; Matter of Lombardo v. Endicott Johnson Corp., 275 App. Div. 18), and thus the board properly concluded that the natural inference was that she paid “ the funeral bill as a widow, not as an alleged employer.” Decision affirmed, without costs. Gibson, P. J., Herlihy and Staley, Jr., JJ., concur; Taylor, J., not voting.