Claim of Firenze v. Mayflower Van Lines

Rose, J. Appeal from a decision of the Workers’ Compensation Board, filed November 10, 2004, which ruled that claimant’s application for workers’ compensation benefits was time-barred. The sole issue presented on this appeal by claimant is whether his application for workers’ compensation benefits was barred by Workers’ Compensation Law § 28. We agree with the Workers’ Compensation Board that it was. A workers’ compensation claim that is not filed within two years of the date of the accident is untimely unless the employer’s workers’ compensation carrier has made advance payment to the claimant in acknowledgment of liability (see Workers’ Compensation Law § 28; Matter of Marker v Bell Atl., 5 AD3d 818, 819 [2004]; Matter of Petitt v Eaton & Van Winkle, 5 AD3d 822, 823 [2004]). Here, it is undisputed that claimant failed to file his claim within the requisite two-year period of time. Although various third-party administrators for the insurance company that provided workers’ compensation coverage to his employer did make advance payments to claimant, we find that substantial evidence in the record supports the Board’s decision that said payments were not made in recognition of workers’ compensation liability. Rather, as a third-party administrator indicated in correspondence to claimant’s treating chiropractor, the payments were made to claimant under an occupational accident policy as the matter was not considered a workers’ compensation case. Moreover, claimant’s chiropractor advised that he was never directed by the third-party administrators to submit any workers’ compensation documents in connection with his treatment of claimant. Accordingly, despite the existence of record evidence which could lead to a contrary conclusion, we affirm the Board’s decision (see Matter of Walker v TNT Red Star Express, 25 AD3d 945, 946-947 [2006]; Matter of Marques v Salgado, 12 AD3d 817, 819 [2004]). Cardona, EJ., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.