Opinion
527430
10-03-2019
In the Matter of the Claim of Thomas M. HORVATH, Appellant, v. MEGA FORKLIFT et al., Respondents. Workers' Compensation Board, Respondent.
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant. Jones Jones LLC, New York City (David S. Secemski of counsel), for Mega Forklift and another, respondents.
Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant.
Jones Jones LLC, New York City (David S. Secemski of counsel), for Mega Forklift and another, respondents.
Before: Garry, P.J., Clark, Mulvey, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a decision of the Workers' Compensation Board, filed January 26, 2018, which ruled that claimant did not give timely notice of injury and denied his claim for workers' compensation benefits.
According to claimant, who is the employer's owner, he was involved in a work-related motor vehicle accident on March 13, 2015, as a result of which he sustained an injury to his right shoulder. Although claimant sought medical treatment shortly thereafter and underwent surgery on his right shoulder in September 2015, he admittedly did not provide notice to the employer's workers' compensation carrier until he filed a claim for workers' compensation benefits in February 2017 – nearly two years after the underlying accident occurred. The carrier controverted the claim asserting, among other things, that claimant failed to provide timely notice of the injury pursuant to Workers' Compensation Law § 18. Following a hearing, a Workers' Compensation Law Judge found that claimant failed to provide timely notice and disallowed the claim – a finding that subsequently was affirmed by the Workers' Compensation Board. This appeal by claimant ensued.
We affirm. " Workers' Compensation Law § 18 requires that a claimant seeking workers' compensation benefits must provide written notice of an injury within 30 days after the accident causing such injury. 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 Taylor v. Little Angels Head Start, 164 A.D.3d 1512, 1512–1513, 82 N.Y.S.3d 275 [2018] [internal quotation marks and citations omitted]; accord Matter of Sheikh v. White & Blue Group Corp., 168 A.D.3d 1196, 1197, 90 N.Y.S.3d 704 [2019] ; see Matter of Thousand v. Human Resources Admin., Community Dev. Agency, 252 A.D.2d 664, 664–665, 675 N.Y.S.2d 402 [1998], lv denied 92 N.Y.2d 816, 684 N.Y.S.2d 187, 706 N.E.2d 1211 [1998] ). Where, as here, the claimant is an officer of the employer, the requisite notice must be given to the employer's workers' compensation carrier (see Matter of Hollenbeck v. Hollenbeck & Dailey, 2 A.D.3d 1068, 1068, 768 N.Y.S.2d 742 [2003] ; Matter of Tumminello v. Dadswell & Tumminello, 132 A.D.2d 735, 736–737, 517 N.Y.S.2d 312 [1987], lv denied 70 N.Y.2d 612, 523 N.Y.S.2d 496, 518 N.E.2d 7 [1987] ; Matter of Nebenhaus v. Lydmark Corp., 79 A.D.2d 804, 805, 435 N.Y.S.2d 101 [1980] ). Significantly, the claimant bears the burden of establishing an excusable ground for failing to give timely notice (see Matter of Ewool v. Franklin Hosp. Med. Ctr., 49 A.D.3d 1019, 1020, 853 N.Y.S.2d 427 [2008], lv denied 10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008] ; Matter of Miller v. North Shore Univ. Hosp., 13 A.D.3d 862, 863, 785 N.Y.S.2d 796 [2004] ; Matter of Hollenbeck v. Hollenbeck & Dailey, 2 A.D.3d at 1068, 768 N.Y.S.2d 742 ) and, even where one of the foregoing grounds is established, the Board need not excuse the claimant's failure to provide timely notice; rather, this remains a matter committed to the Board's discretion (see Matter of Sheikh v. White & Blue Group Corp., 168 A.D.3d at 1197, 90 N.Y.S.3d 704 ; Matter of Taylor v. Little Angels Head Start, 164 A.D.3d at 1513, 82 N.Y.S.3d 275 ).
There is no dispute that claimant failed to apprise the carrier of his injuries until nearly two years after the accident occurred; hence, claimant did not provide timely notice under Workers' Compensation Law § 18. As to the issue of prejudice, the record reflects that the carrier did not learn of claimant's accident and the resulting injuries until long after claimant underwent a surgical repair of his right shoulder. As the Board aptly observed, this significant delay prevented the carrier from promptly investigating the claim and deprived it of the opportunity to have claimant undergo an independent medical examination prior to surgery. Although claimant argues that he remains available to be deposed and that the carrier has access to all relevant medical records, claimant's argument overlooks the fact that the carrier did not have any opportunity to, among other things, assess the extent of claimant's injuries, the propriety of the treatment rendered and/or the need for surgery prior to the point in time that claimant actually underwent a surgical repair of his right shoulder (see Matter of Miller v. North Shore Univ. Hosp., 13 A.D.3d at 863, 785 N.Y.S.2d 796 ; compare Matter of McNichols v. New York City Dept. of Corr., 140 A.D.3d 1557, 1558, 34 N.Y.S.3d 531 [2016] ). As claimant's postaccident condition changed with the passage of time (cf. Matter of Taylor v. Little Angels Head Start, 164 A.D.3d at 1513, 82 N.Y.S.3d 275 ; Matter of Rydstrom v. Precision Carpentry of Westchester, Inc., 150 A.D.3d 1602, 1603, 55 N.Y.S.3d 521 [2017], lv denied 30 N.Y.3d 902, 2017 WL 4654096 [2017] ; Matter of Baker v. E.J. Constr. Group, Inc., 26 A.D.3d 652, 653, 809 N.Y.S.2d 645 [2006] ), the Board's finding that the carrier was prejudiced by the significant delay in notification is supported by substantial evidence in the record (see Matter of Tumminello v. Dadswell & Tumminello, 132 A.D.2d at 737, 517 N.Y.S.2d 312 ; compare Matter of Lopadchak v. R.W. Express LLC, 133 A.D.3d 1077, 1077–1078, 20 N.Y.S.3d 675 [2015] ). Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Clark, Devine and Pritzker, JJ., concur.
ORDERED that the decision is affirmed, without costs.