Calendar Date: April 27, 2017
F. Clennan, Ronkonkoma, for appellant.
William O'Brien, State Insurance Fund, Melville (Janis M.
Riekstins of counsel), for Precision Carpentry of
Westchester, Inc. and another, respondents.
Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
December 4, 2015, which ruled, among other things, that
claimant did not give timely notice of injury and denied his
claim for workers' compensation benefits.
a carpenter, reportedly sustained injuries when a steal cable
fell on him at a construction site on July 8, 2014. Claimant
did not report the incident to his supervisor or complete an
accident report, and continued to work. Claimant was fired
three days later for an unrelated reason, and he did not seek
medical care until October 31, 2014. Claimant filed for
workers' compensation benefits by submitting a C-3 form
dated November 3, 2014, and the employer and its workers'
compensation carrier thereafter raised the issue of
claimant's failure to timely report the accident.
Following a hearing, the Workers' Compensation Board
disallowed the claim finding that it was not timely filed.
affirm. Workers' Compensation Law § 18 requires that
a claimant seeking workers' compensation benefits must
provide written notice of an injury "within  days
after the accident causing such injury" (see Matter
of McNichols v New York City Dept. of Corr., 140 A.D.3d
1557, 1557 ). The failure to give timely written notice
generally precludes a claim unless the Board excuses the
failure on the ground that "notice could not be given,
the employer or its agent had knowledge of the accident or
the employer did not suffer any prejudice" (Matter
of Johnson v T.L. Cannon Mgt., 145 A.D.3d 1202, 1203
; see Workers' Compensation Law § 18;
Matter of Lopadchak v R.W. Express LLC, 133 A.D.3d
1077, 1077 ).
the supervisor testified that claimant never reported the
alleged accident or filed the required accident report, and
claimant conceded that he had not done so and was not aware
of any witnesses. Thus, claimant failed to establish that the
employer had actual knowledge of the alleged incident. While
claimant testified that he did not report the alleged
accident because he feared losing his job and thought that
the injury "would go away by itself, " the Board
rationally concluded that this was not a situation in which
notice could not be given. To that end, claimant offered no
plausible explanation for why he did not report the alleged
accident even after he was fired days later or despite the
fact that he "continually had pain."
record also supports the Board's discretionary
determination that claimant failed to demonstrate that the
employer was not prejudiced as a result of the lack of timely
notice (see Matter of Johnson v T.L. Cannon Mgt.,
145 A.D.3d at 1203; cf. Matter of McNichols v New York
City Dept. of Corr., 140 A.D.3d at 1157-1158; Matter
of Lopadchak v R.W. Express LLC, 133 A.D.3d at 1077).
"No prejudice will be found to exist where the employer
had actual independent knowledge of the event or where the
delay neither aggravated the injury nor prevented the
employer from properly investigating the claim"
(Matter of McNichols v New York City Dept. of Corr.,
140 A.D.3d at 1157 [internal quotation marks and citation
omitted]). The record supports the Board's finding that
the delay aggravated claimant's injury, as the medical
records from when claimant first obtained medical treatment
four months after the alleged accident reflect that "his
symptoms have been getting progressively worse."
Further, the Board reasonably concluded that belated notice
"frustrated the employer's efforts to interview the
individuals who allegedly dropped the steel cable which
injured claimant." Given the foregoing, we discern no
basis upon which to disturb the Board's determination
(see Matter of Johnson v T.L. Cannon Mgt., 145
A.D.3d at 1203).
we reject claimant's contentions that the employer failed
to timely controvert the claim. The Board's decision
makes clear that the case was never indexed by the Board.
Accordingly, the provisions of Workers' Compensation Law
§ 25 (2) (b) are inapplicable to the extent that they
require that an employer who wishes to controvert the claim
must file a notice of controversy within 25 days of the
mailing of notice that the case has been indexed or face
preclusion of certain claims and evidence (see Matter of
Enriquez v Home Lawn Care & Landscaping, Inc., 77
A.D.3d 1149, 1150 ; compare Matter of Cappellino v
Baumann & Sons Bus Co., 18 N.Y.3d 890, 891-892
; Matter of Stevenson v Yellow Roadway Corp.,
114 A.D.3d 1057, 1059 ).
Peters, P.J., Garry, Devine and ...