Opinion
January 6, 1994
Appeal from the Workers' Compensation Board.
The only issue that need be determined on these appeals is whether the finding of the Workers' Compensation Board that the February 11, 1988 report of Mihai Dimancescu was not filed with the Workers' Compensation Board within seven years of claimant's January 8, 1982 accident (see, Workers' Compensation Law § 25-a) was unreasonable. In view of the absence of any probative evidence that the report was filed with the Board, we answer the question in the negative and accordingly affirm. Notably, because no evidence was adduced as to Dimancescu's office practice and procedure regarding mailing, no presumption of delivery arose (compare, Bossuk v. Steinberg, 58 N.Y.2d 916, 919; Matter of Allen v. Bausch Lomb, 130 A.D.2d 802, 803). Although not necessary for our determination, we also agree with the Board's determination that the report failed to state a change in condition upon which compensation could be awarded in any event (see, Matter of Pucser v. Allegheny Ludlum Steel Corp., 45 A.D.2d 798). The remaining contentions of the Special Fund for Reopened Cases have been considered and rejected.
Cardona, P.J., Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the decision and amended decision are affirmed, with costs.