Comp Worker’s Claim Fails Due to Untimely Report of Injury to NY Employer

Stressing that under N.Y. Workers’ Comp. Law § 18, an injured employee is required to give written notice of any work-related injury to his or her employer within 30 days, a New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that had denied, as untimely reported, a workers’ compensation claim of a New York employee, whose job responsibilities actually included controverting workers’ compensation claims on behalf of his employer [Matter of Abdallah v. New York City Tr. Auth., 2021 N.Y. App. Div. LEXIS 1511 (Mar. 11, 2021)]. Based upon a two-month delay in notifying the employer, coupled with the employee’s failure to produce a relevant medical report, the appellate court said the Board had not abused its discretion in disallowing the claim.

Background

Claimant allegedly suffered a work-related injury to his right knee on August 17, 2018. According to claimant, he twisted his knee when someone bumped into him while he was descending a staircase in the building where he worked. Although he testified that he sought medical treatment four days later, he did not give written notice of the injury to the employer until October 15, 2018, and did not apply for workers’ compensation benefits until November 19, 2018. The employer opposed the claim citing, among other things, untimely notice. Following a hearing, the WCLJ accepted that the accident occurred, but disallowed the claim, concluding that claimant did not provide timely (i.e., 30-day) notice of the accident to the employer pursuant to N.Y. Workers’ Comp. Law § 18. The WCLJ also found the employee had failed to demonstrate that the employer was not prejudiced as a result. The Board affirmed, and claimant appealed.

Appellate Court Decision

The appellate court affirmed. It noted that claimant’s job responsibilities included controverting workers’ compensation claims on behalf of the employer. It also observed that claimant had admitted that he was aware that he was required to report the injury within 30 days. Claimant testified that he first sought treatment for his injury at an emergency room visit on August 21, 2018, but there was no report from this visit in the record. Claimant also sought treatment from an orthopedic surgeon on August 27, 2018 and on September 10, 2018, but admittedly did not mention that his injury was work related.

During the September 10 examination, claimant was diagnosed with a meniscus injury of the knee and surgery was discussed, but claimant opted to have a cortisone injection instead. Claimant sought further treatment on October 15, 2018, after his knee locked up as he was running to cross a street. Claimant informed the surgeon at that time that his symptoms had worsened, that he wanted to have surgery and that he would be filing a workers’ compensation claim based upon the injury. Based upon these facts and factors, the appellate court found there had been no abuse of discretion in the Board’s disallowance of the claim.

Quick Comment

The New York Board has broad discretion under N.Y. Workers’ Comp. § 18 to excuse late injury reports and claims. One wonders if the WCLJ, the Board, and the appellate court would have been more tolerant—the delay here was only two months—with an employee whose work responsibilities did not include controverting workers’ compensation claims. Did the Board introduce an element of fault into the equation here?