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Matter of White v. Tougher Industries

Appellate Division of the Supreme Court of New York, Third Department
Jun 25, 1998
251 A.D.2d 938 (N.Y. App. Div. 1998)

Opinion

June 25, 1998

Appeal from the Workers' Compensation Board.


Claimant, a sheet metal worker, began suffering from hearing loss in 1989. In December 1994, he filed a claim for workers' compensation benefits alleging that the hearing loss was caused by his work. The Workers' Compensation Board found that claimant did not have knowledge that the hearing loss was work related until it was medically diagnosed in January 1995 and, therefore, the claim was timely filed pursuant to Workers' Compensation Law § 49-bb Work. Comp.. We affirm.

Workers' Compensation Law § 49-bb Work. Comp. provides that a claim for benefits based upon occupational hearing loss which is not filed within two years of the date of disablement is nonetheless timely if filed within 90 days after the claimant' acquires knowledge that the hearing loss is work related. Here, claimant's suspicions regarding the relationship between his work and his hearing loss that led him to file the claim for benefits were insufficient to satisfy the knowledge requirement, therefore triggering the 90-day period ( see generally, Matter of Gonzalez v. Ozalid Corp., 235 A.D.2d 859). While we recognize that it is unnecessary for a claimant to obtain a medical diagnosis of occupational hearing loss in order to satisfy the knowledge requirement and commence the 90-day period ( see, Matter of Depczynski v. Adsco/Farrar Trefts, 84 N.Y.2d 593), in this case the record supports the finding that claimant did not acquire the requisite knowledge until his condition was medically diagnosed in January 1995. Inasmuch as the claim for benefits was filed prior to this triggering event, we find no reason to disturb the Board's decision.

Mikoll, J. P., White, Peters, Spain and Graffeo, JJ., concur.

Ordered that the decision is affirmed, without costs.


Summaries of

Matter of White v. Tougher Industries

Appellate Division of the Supreme Court of New York, Third Department
Jun 25, 1998
251 A.D.2d 938 (N.Y. App. Div. 1998)
Case details for

Matter of White v. Tougher Industries

Case Details

Full title:In the Matter of the Claim of JOHN A. WHITE, Respondent, v. TOUGHER…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 25, 1998

Citations

251 A.D.2d 938 (N.Y. App. Div. 1998)
674 N.Y.S.2d 876

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