IN RE: the Claim of Thomas McNALLY

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Thomas McNALLY, Appellant, v. NEWSDAY et al., Respondents. Workers' Compensation Board, Respondent.

Decided: May 24, 2007

Before:  CREW III, J.P., CARPINELLO, MUGGLIN, ROSE and KANE, JJ. John F. Clennan, Ronkonkoma, for appellant. Barrett, Ross, Rothstein & Tufo, Commack (Daniel A. Tufo of counsel), for Newsday and another, respondents.

Appeal from a decision of the Workers' Compensation Board, filed June 27, 2005, which ruled that claimant's application for workers' compensation benefits was time barred.

Claimant ceased working in December 1998 due to problems he was experiencing with his left knee.   In June 2003, claimant filed a claim for workers' compensation benefits asserting that he required knee replacement surgery as the result of an injury to the knee sustained in the course of his employment.   Following a hearing, claimant's application was disallowed as time barred, which determination was affirmed by the Workers' Compensation Board, prompting this appeal.

We affirm.   A claimant seeking workers' compensation benefits due to an occupational disease must file an application “within two years after disablement and after the claimant knew or should have known that the disease is or was due to the nature of the employment” (Workers' Compensation Law § 28;  see Matter of Pawlak v. Ford Motor Co., 19 A.D.3d 831, 799 N.Y.S.2d 283 [2005] ).   Here, claimant testified that he was advised by his treating physician in 1998 that his knee problems were work related.   Additionally, his application for workers' compensation benefits reveals that he informed his employer as early as December 1998 that he had sustained a work-related injury.   Inasmuch as the Board's determination is, thus, supported by substantial evidence, we decline to disturb it (see Matter of Jex v. Albion Correctional Facility, 4 A.D.3d 574, 575, 770 N.Y.S.2d 919 [2004] ).   We have considered claimant's remaining contentions and have determined that they are without merit.

ORDERED that the decision is affirmed, without costs.



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