| Matter of Neville v Magazine Distribs., Inc. |
| 2009 NY Slip Op 02711 [61 AD3d 1165] |
| April 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Liam Neville, Appellant, v MagazineDistributors, Inc., et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Goldstein & Avrutine, Syosset (Daniel L. Millman of counsel), for Magazine Distributors,Inc. and another, respondents.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed May 29, 2008,which ruled that claimant's application for workers' compensation benefits was barred byWorkers' Compensation Law § 28.
In his application for workers' compensation benefits, claimant asserted that his disablingmembranous nephropathy was an occupational disease caused by exposure to chemicals at hisworkplace. At the conclusion of his direct examination before a Workers' Compensation LawJudge, however, his counsel conceded that the claim was for an accident rather than anoccupational disease and that the date of the accident was more than two years prior to the filingof the claim. Accordingly, the Workers' Compensation Board found that claimant had sustainedan accidental injury and that his claim was untimely under Workers' Compensation Law §28 because he did not assert it until more than two years after the accident. On appeal, hecontends that the employer waived the defense of untimeliness by not specifically raising it atthe first hearing and that, in any event, the tolling provision for occupational diseases inWorkers' Compensation Law § 28 should be applied to his injury.[*2]
The timeliness objection was not waived. At the firsthearing, the employer's counsel stated that it was raising "all . . . issues" in the C7form which controverted the claim, and the C7 included a reference to Workers' CompensationLaw § 28. Inasmuch as the parties then discussed the threshold issue of whether claimanthad an occupational disease, which would extend the limitations period, the Board rationallyconcluded that "all issues" included the timeliness of a claim filed in November 2006 for anaccidental injury allegedly sustained no later than August 2004 (see Matter of Skippon vT.M. Kenney's Inc., 296 AD2d 634, 635 [2002], lv denied 99 NY2d 502 [2002]).
Claimant's argument that his claim for accidental exposure to hazardous materials shouldhave the benefit of the tolling provision in Workers' Compensation Law § 28 for thediscovery of an occupational disease is unpreserved for our review due to his failure to raise itbefore either the Workers' Compensation Law Judge or the Board (see e.g. Matter of Toner v Michael HanleyMoving & Stor., 40 AD3d 1199, 1200 [2007], lv denied 9 NY3d 808 [2007]; Matter of Huang Sheng Ku v DanaAlexander, Inc., 12 AD3d 988, 989 [2004]).
Peters, J.P., Lahtinen, Kane and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.