63 A.D.2d 1108 | N.Y. App. Div. | 1978
Appeals from decisions of the Workers’ Compensation Board, filed November 4, 1976 and March 17, 1977, which restored the matter to the referee’s calendar for appropriate- award and denied appellants’ request to reopen. Claimant, a sales manager for an automobile agency, voluntarily left his employment on May 14, 1974. He applied for and was denied unemployment insurance benefits. On November 19, 1974 claimant was hospitalized for a period of four months. The Veterans’ Administration Hospital diagnosed his condition upon admittance as "Involutional Depression”. On April 27, 1976 the medical chief of the hospital submitted a letter which stated that claimant was "Depressed and confused * * * and unable to file any claim during the period of May 19, 1974 to November 19, 1974.” Acting on the claimant’s application for review of the referee’s decision denying him disability benefits, the board concluded: "After review, the Board finds, based on the credible evidence, because of the nature of claimant’s illness, the time limitations prescribed by Section 217 for filing a claim do not run against claimant and therefore claimant is entitled to benefits for disability.” The order awarding disability benefits must be affirmed. Appellants’ reliance upon Matter of Whalen v Allied Messenger Serv. (12 AD2d 1) is misplaced. Whalen does not state that a failure to file a claim with 26 weeks after the commencement of the period of disability (Workers’ Compensation Law, §217) mandates a denial of benefits. Rather, Whalen and its progeny (Matter of Bellinger v Perini Corp., 28 AD2d 1044) hold that time limitations (Workers’ Compensation Law, §§28, 217) may be tolled if factual patterns are preponderantly resolved as to excuse late compliance. Here, there is uncontested medical proof that claimant was laboring under an incapacitating mental condition on the day he left his employment. Thus, section 115 of the Workers’