In the Matter of the Claim of ANJANABEN KINKHABWALA, Respondent,
ADP TOTALSOURCE FL XIX INC. et al., Appellants. WORKERS' COMPENSATION BOARD, Respondent.
Calendar Date: November 20, 2017
Wexler & Wornow, PC, New York City (J. Evan Perigoe of
counsel), for appellants.
T. Schneiderman, Attorney General, New York City (Nina M. Sas
of counsel), for Workers' Compensation Board, respondent.
Before: McCarthy, J.P., Rose, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
February 24, 2016, which ruled, among other things, that
claimant sustained a causally-related injury to her left knee
and awarded workers' compensation benefits.
worked at a bakery where she made and packaged bread. On
April 3, 2015, she twisted her left leg while stacking boxes
at the bakery. The following day, she saw her treating
physician who removed her from work due to her knee injury.
continued to seek medical treatment for her injury and filed
a claim for workers' compensation benefits on or about
May 27, 2015. The employer controverted the claim and a
hearing was conducted before a Workers' Compensation Law
Judge (hereinafter WCLJ) on the issues of accident, notice
and causal relationship. At the conclusion of the hearing,
the WCLJ established the claim for a work-related injury to
claimant's left knee. The Workers' Compensation Board
affirmed this decision and the employer and its workers'
compensation carrier (hereinafter collectively referred to as
the employer) now appeal.
employer argues, among other things, that claimant failed to
provide timely written notice in accordance with Workers'
Compensation Law § 18. That statute requires a claimant
who is seeking workers' compensation benefits to give the
employer written notice of an injury within 30 days of the
accident causing such injury (see Workers'
Compensation Law § 18; Matter of Johnson v T.L.
Cannon Mgt., 145 A.D.3d 1202, 1203 ; Matter of
McNichols v New York City Dept. of Corr., 140 A.D.3d
1557, 1557 ). The failure to do so may be excused by
the Board in its discretion where such notice could not have
been given for some sufficient reason, the employer or one of
its agents had knowledge of the accident or the employer did
not suffer prejudice (see Workers' Compensation
Law § 18; Matter of Johnson v T.L. Cannon Mgt.,
145 A.D.3d at 1203; Matter of McNichols v New York City
Dept. of Corr., 140 A.D.3d at 1557).
claimant testified through a Gujarati interpreter that she
injured her leg while stacking boxes during her shift on
April 3, 2015 and that she reported the incident to her
supervisor when her shift ended. The employer's
representative testified that the employer's policy for
reporting work-related accidents was not followed and that
claimant's supervisor did not report the incident to her.
She stated that she first learned of it when she visited
claimant's home on May 11, 2015 to investigate a
work-related accident involving claimant's husband, at
which time she observed claimant wearing a leg brace and
obtained a written statement from claimant regarding her
injury. The Board credited the testimony of claimant, noting
the presence of a language barrier and the absence of any
conflicting testimony from claimant's supervisor, and
found that the employer was notified by claimant of the
incident that caused her injury. We defer to the Board's
credibility determination in this regard (see Matter of
McMullen v Fisher Body Div., Gen. Motors Corp., 69
A.D.2d 971, 971 ) and conclude that it did not abuse
its discretion in excusing claimant's failure to provide
timely written notice based upon the employer's actual
knowledge (see Matter of Hasbrouck v Harloff, 122
A.D.3d 1014, 1015 ; Matter of Conyers v Van
Rensselaer Manor, 80 A.D.3d 914, 916 ).
employer also challenges the Board's finding that
claimant sustained an injury to her left knee that was
causally related to an incident at work. Preliminarily, we
note that "[t]he Board is empowered to determine the
factual issue of whether a causal relationship exists based
upon the record, and its determination will not be disturbed
when supported by substantial evidence" (Matter of
Oparaji v Books & Rattles, 147 A.D.3d 1165, 1165
, lv denied 29 N.Y.3d 918');">29 N.Y.3d 918  [internal
quotation marks and citations omitted]; see Matter of
Searchfield v Lowe's Home Ctrs., Inc., 92 A.D.3d
1038, 1039-1040 ). Here, the employer's claim that
the medical evidence does not support the finding of a causal
relationship is based on inconsistencies in claimant's
medical history as set forth in various medical reports, not
on any divergence in medical opinion. Although most of the
reports related that claimant injured her knee on April 3,
2015 while at work, one stated that she injured her knee when
she fell at home. These conflicting reports again presented a
question of credibility for the Board to resolve (see
Matter of Conyers v Van Rensselaer Manor, 80 A.D.3d at
914) and, deferring to the Board's resolution of that
question, substantial evidence supports its finding that she
sustained a causally-related injury to her left knee (see
Matter of Brown v Penguin A.C., 113 A.D.3d 1009, 1009
; Matter of Nassar v Masri Furniture & Mdse.,
Inc., 91 A.D.3d 1022, 1022-1023 ).
doubtful that the employer properly preserved, in its
application for Board review, the argument that it was
deprived of an opportunity to cross-examine one of
claimant's physicians. In any event, the Board credited
claimant's testimony as to how the accident occurred. A
record prepared by the physician in question raises a
question as to when he signed it, but cross-examination on
that subject would have been pointless inasmuch as there was
no medical dispute as to whether the accident, if it occurred
as described by claimant, caused her injuries. Accordingly,
"[i]n the absence of a viable difference in the expert
opinions expressed in the medical reports, no prejudice
accrue[d] as a result of the denial of the right to
cross-examine" and reversal would not be required
(Matter of Bryan v Borg-Warner Automotive, 293
A.D.2d 856, 857 ; see Matter of Robideau v Van
Rensselaer Manor, 56 A.D.3d 866, 867-868 ).
McCarthy, J.P., Rose, Mulvey and ...