Claim of Carey v. Rochester Telephone Corp. (38 A.D.2d 640, 1971)

Appeal by the self-insured employer from a decision of the Workmen’s Compensation Board, filed August 3, 1970, which increased the claimant’s award from 50% to 66%%, retroactive to December 27, 1966. By a decision dated January 8, 1968 the board affirmed a Referee’s decision that the claimant sustained a back injury in 1962 and that accident, notice and causal relationship were established for that injury. The board’s decision does not indicate that the employer attempted to raise the time limitations of section 28 of the Workmen’s Compensation Law as to the 1962 accident and the minutes of the hearing before the board upon the carrier’s application in regard to the 1962 accident do not indicate that any issue as to said section 28 was raised. There was no appeal. The record establishes that the appellant raised no question as to section 28 in the proceedings before the board which resulted in the decision appealed from increasing the percentage of disability of the claimant from 50% to 66%%. The appellant having failed to raise any issue as to section 28 in the proceedings heretofore had in this claim must he deemed to have waived the same (Workmen’s Compensation Law, § 28) and, in any event, the appellant having failed to raise this issue before the board may not assert the same upon this appeal (Matter of Hedlund v. United Exposition Decorating Co. (15 A D 2d 973, mot. for Iv. to app. den. 11 N Y 2d 646). The appellant has not contended upon this appeal that the board’s decision should be reversed for any reason other than the bar of said section 28. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.