Claim of Boshart v. St. Francis Hospital

Appeal from a decision of the Workers’ Compensation Board, filed May 18, 1994, which, inter alia, ruled that the employer had waived the Statute of Limitations defense of Workers’ Compensation Law § 28. Claimant, a hospital employee, stopped working on June 7, 1991 after aggravating a preexisting back condition. She filed a claim for workers’ compensation benefits on February 4, 1992. Thereafter, her claim was denied and hearings were held before a Workers’ Compensation Law Judge (hereinafter WCLJ). The WCLJ subsequently found, inter alia, that claimant had produced prima facie medical evidence establishing a claim for an occupational back condition. Upon appeal to the Board, the Board, inter alia, rejected the contention of the employer and its insurance carrier (hereinafter collectively referred to as the employer) that the claim was barred by Workers’ Compensation Law § 28 and restored the case to the trial calendar on the issue of causation. This appeal by the employer ensued. The employer contends that the claim must be dismissed because it was not filed by claimant within two years of the date she had notice of her injury as required by Workers’ Compensation Law § 28. Our review of the record, however, discloses that the employer failed to raise this issue at the first hearing on the claim at which all of the parties were present. Consequently, we agree with the Board that the employer waived the right to raise it as a defense to the claim (see, Workers’ Compensation Law § 28; see also, Matter of Friedenzohn v Three Star Offset Print., 176 AD2d 379, 380; Matter of Brozzo v St. Joe Mins. Corp., 175 AD2d 425, 426). Mercure, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.