Claim of Lesch v. Wile

Cardona, P. J. Appeal from a decision of the Workers’ Compensation Board, filed May 24, 2000, which ruled that claimant’s application for workers’ compensation benefits was timely filed. Claimant’s June 1997 claim, based upon the occupational disease of carpal tunnel syndrome, was controverted by the employer and its workers’ compensation carrier who asserted that claimant’s symptoms dated back to at least 1989. Therefore, it was argued that the claim was untimely. A workers’ compensation claim based on an occupational disease must be filed “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). In determining the date of disablement, the Workers’ Compensation Board “has great latitude” and its findings in that regard will not be disturbed if supported by substantial evidence (Matter of Hastings v Fairport Cent. School Dist., 274 AD2d 660, 661, lv dismissed 95 NY2d 926). Here, there is evidence in the record that claimant had previously sought treatment for numbness and pain in her hands and a 1989 physician’s report indicated that claimant’s symptoms “may well represent median neuritis occasioned by carpal tunnel syndrome.” Claimant testified, however, that the pain she began to experience in 1996 was different than that experienced earlier and the Board credited her statement that she did not receive a definitive diagnosis of carpal tunnel syndrome until June 30, 1997. In addition, claimant’s treating orthopedist specifically reported his opinion that claimant’s 1996 symptoms had “nothing to do with [her] ‘previous injuries.’ ” Under these circumstances, there is no basis to disturb the Board’s decision crediting claimant’s testimony and selecting June 30, 1997 as the date of disablement (see, id.; Matter of Montalvo v Pioneer Pizza Pie Corp., 20 AD2d 603). Peters, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.