(dissenting). It is not disputed that the claimant suffered accidental injuries to her back while in the course of her employment in January of 1968, and reported the same to her employer. In July of 1969 she went to a doctor and on April 20, 1970 filed a claim for compensation. The claim was controverted upon the question of a timely filing of the claim within the two-year period set forth in section 28 of the Workmen’s Compensation Law. At the first Referee hearing held on November 16, 1970 no testimony was taken. However, the appellants’ counsel expressly raised the issue of an Untimely filing of the claim. After that hearing and on December 28, 1970 the employer paid the claimant’s doctor for services rendered on July 23, 1969 to the claimant. The board found that that payment constituted an advance payment of compensation and, accordingly, pursuant to the terms of section 28 of the Workmen’s Compensation Law the failure to file a claim within two years of the accident was waived. The carrier’s contention that, as a matter of law, payment by the employer of medical expenses after two years cannot constitute a waiver is erroneous. (See Matter of Hamilton v. Village of Lynbrook, 284 N. Y. 613; Matter of Crook v. Be Laval Separator Co., 3 A D 2d 773 and Matter of Olivey v. Schine Malone Corp., 281 App. Div. 784, mot. for lv. to app. den. 305 N. Y. 931.) Upon the present record it is well established that at the time the employer paid the medical bill it was well aware of the claim and the fact that the payment was being made for alleged treatment'resulting from the accident of 1968. (Cf. Matter of Elenz v. American Mach. & Foundry, 34 A D 2d 713.)
The decisions should be affirmed.
Greenblott and Sweeney, JJ., concur with Reynolds, J.; Herlihy, P. J., and Cooke, J., dissent and vote to affirm in an opinion by Herlihy, P. J.
Decisions reversed, and claim dismissed, without costs.