Diamond v. Bache & Co.

—Appeal from a decision of the Workers’ Compensation Board, filed September 9, 1976, which dismissed the claim for a failure to timely file as required by section 28 of the Workers’ Compensation Law. The claimant filed a claim on May 14, 1971 alleging mental disability sustained from the employment, which culminated in a nervous breakdown in October, 1962. She seeks to excuse her failure to file a claim within the two-year period of section 28 of the Workers’ Compensation Law by alleging she was incompetent and invoking the tolling provision of section 115 of the Workers’ Compensation Law which provides as follows "No limitation of time * * * shall run as against any person who is mentally incompetent * * * so long as he has no committee”. The record establishes that the claimant does have a mental illness; however, as found by the board, there is no medical evidence of continuous incompetency or that she could not have filed a claim. Accordingly, the rejection of the claim is supported by substantial evidence that the claimant was able to work and was not in fact totally disabled by her mental condition throughout the period at issue (see Matter of Goetzmann v Buffalo Gun Center, 55 AD2d 738; Matter of Bellinger v Perini Corp., 28 AD2d 1044). The remaining issue raised by the claimant as to a hearing is without merit. Decision affirmed, without costs. Greenblott, J. P., Kane, Main, Mikoll and Herlihy, JJ., concur.