Gruber v. Nelo Knitwear Corp.

68 A.D.2d 961 | N.Y. App. Div. | 1979

Appeal from a decision of the Workers’ Compensation Board, filed November 2, 1977, which held that claimant’s claim was barred by not being timely filed pursuant to section 28 of the Workers’ Compensation Law. Claimant filed a claim for compensation dated March 9, 1976. She allegedly suffered a nervous breakdown in 1965 caused by the noise of a sewing machine she operated at her employment. Section 28 of the Workers’ Compensation Law requires that a claim be filed within two years after an accident. Claimant maintains that her accident caused her to become mentally incompetent and, consequently, the two-year period was tolled pursuant to section 115 of the Workers’ Compensation Law due to incompetency. There was no evidence submitted, however, demonstrating that claimant was mentally incompetent prior to 1970. Her husband testified that claimant was first hospitalized in 1970 and that in 1965 and 1966 claimant was all right and able to get about by herself. The board’s finding that the claim was barred by section 28 of the Workers’ Compensation Law is supported by substantial evidence and, therefore, the decision must be affirmed (Matter of Goetzmann v Buffalo Gun Center, 55 AD2d 738). Decision affirmed, without costs. Sweeney, J. P., Kane, Staley, Jr., Mikoll and Herlihy, JJ., concur.