Vague, Nonspecific Statements About Knee Pain Did Not Constitute Required Notice to New York Employer

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that found a claimant had failed to provide the required written notice of injury to his employer [see N.Y. Workers’ Comp. Law § 18] and that the claimant’s failure to do so was not excused [Matter of Nukicic v. McLane Northeast, 2019 N.Y. App. Div. LEXIS 5821 (July 25, 2019)]. The appellate court acknowledged that the claimant lacked proficiency in English, but agreed that such a deficiency was not a sufficient reason for failing to provide notice of injury. Accordingly, the Board was within its statutory powers to deny the claim as untimely.

Background

Claimant, a truck driver for the employer, filed a claim for workers’ compensation benefits in March 2017, alleging that he had sustained a work-related injury to his left knee, leg and hand on October 13, 2016. The employer and carrier controverted the claim, contending, in relevant part, that claimant had not provided written notice of the accident within 30 days of its occurrence as required by N.Y. Workers’ Comp. Law § 18. Following a hearing, a WCLJ found that claimant provided timely notice of the accident to the employer and, to the extent that there was any delay, the employer was not prejudiced as a result. The Board reversed, finding that claimant did not provide written notice of the accident within the requisite 30-day period, that his asserted lack of proficiency in English was not a sufficient reason for failing to do so and that he failed to establish that the employer was not prejudiced by the lack of timely notice. Claimant appealed.

Section 18 Requirements

Initially, the appellate court noted that pursuant to § 18, a failure to give timely notice generally precludes a claim unless the Board excuses the failure on any of three grounds:

1. That notice could not be given;
2. That the employer or its agent had knowledge of the accident; or
3. That the employer did not suffer any prejudice.

The court added that even if one of the three grounds is proven, the Board is not required to excuse the claimant’s failure and in the end, the issue remains within the discretion of the Board.

Did the Employer Have Sufficient Knowledge of Injury?

The claimant testified that he told one of his dispatchers about his accident as soon as it occurred and that after he sought medical treatment the following day, he delivered “the paper”—apparently an out-of-work note from a physician—to another dispatcher before returning to work two days later.

The dispatcher to whom the claimant purportedly provided verbal notice of his accident testified that claimant indicated during a telephone call in October 2016 that “he had pain in his knee,” but that claimant did not advise that he had suffered a work-related injury. The other dispatcher similarly acknowledged that claimant stated that his knee was swollen but, when the dispatcher asked claimant if the injury was work related, claimant replied, “No, just needed to see a doctor.” This same dispatcher testified that, although he may have received an out-of-work note from claimant, the note did not reflect that claimant had sustained a work-related injury. According to the record, the first report of incident in the matter was filed on or about January 27, 2017.

Deference to the Board

The appellate court indicated that in light of the testimony and, granting deference to the Board’s credibility determinations, substantial evidence supported the Board’s finding that claimant failed to give the required written notice under § 18. The court reached a similar finding as to We reach a similar conclusion with respect to the Board’s finding that such notice was not excused by claimant’s asserted lack of proficiency in English and, further, that claimant failed to show that the employer was not prejudiced by the lack of timely notice.