NY Claim Denied Where Carrier Was Prejudiced by Two-Year Delay in Claim Filing
A New York appellate court recently affirmed a decision by the state’s Workers’ Compensation Board denying a claim for failure to provide proper notice to the workers’ compensation carrier where such notice was communicated almost two years after the accident occurred and after the claimant had undergone surgical repair to his right shoulder [Matter of Horvath v. Mega Forklift, 2019 N.Y. App. Div. LEXIS 7136 (3d Dept. Oct. 3, 2019)]. The court noted that N.Y. Workers’ Comp. Law § 18 required that written notice of injury must be provided within 30 days after the accident causing the injury and that failure to do so could be fatal to the claim unless the Board excused the failure. The Court concluded that in the instant case, it was within the discretion of the Board not to excuse the delay.
Background
Claimant, who was the employer’s owner, was involved in a work-related motor vehicle accident on March 13, 2015. As a result of the accident, he sustained a right shoulder injury. He sought medical treatment shortly thereafter and underwent surgery on the shoulder in September 2015, but he did not provide notice of the accident and injury to the workers’ compensation carrier until he filed a claim for benefits in February 2017.
Following a hearing, the WCLJ found that claimant failed to provide timely notice and disallowed the claim. The Board subsequently affirmed and claimant appealed.
Notice to Employer Not Always Notice to Carrier
The appellate court stressed that in New York, where, as here, the claimant is an officer of the employer, the requisite notice must be given to the carrier. In other words, the employer’s “knowledge” of the injury is not imputed to the carrier, as is sometimes otherwise the case. Significantly, the claimant also bears the burden of establishing an excusable ground for failing to give timely notice. Moreover, even where a ground is established, the Board, within its discretion, need not excuse the claimant’s failure to provide timely notice.
The Court continued that here, the carrier did not have the opportunity to investigate the accident promptly after its occurrence. It was deprived of the opportunity to have the claimant undergo an independent medical examination prior to surgery. It did not have the opportunity to assess the propriety of the treatment rendered and/or the need for surgery prior to the actual surgical repair. The Court also noted that the claimant’s post accident condition changed with the passage of time. Under these circumstances, the Board’s finding that the carrier was prejudiced by the significant delay in notification was supported by substantial evidence.