Opinion
October 27, 1967
Appeal by claimant from a decision of the Workmen's Compensation Board disallowing his claim because of his failure to file the claim within the statutory period. It is undisputed that the claim was not timely filed, but claimant seeks to avoid the time limitation provided by section 28 Work. Comp. of the Workmen's Compensation Law contending that he was mentally incompetent and seeks the protection of section 115 Work. Comp. of the Workmen's Compensation Law which, in pertinent part, provides that "No limitation of time provided in this chapter shall run as against any person who is mentally incompetent". There was a conflict of medical testimony given by experts and the board has resolved the conflict in favor of the opinions expressed by two specialists who testified that the claimant was competent. The choice between conflicting medical opinions is exclusively with the board if its decision is supported by substantial evidence. ( Matter of Palermo v. Gallucci Sons, 5 N.Y.2d 529; Matter of Angelino v. 660 Park Ave. Corp., 28 A.D.2d 798.) Upon this record there was substantial evidence to sustain the finding of the board. Decision affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Gabrielli, J.