Opinion
12-08-2016
In the Matter of the Claim of Kevin JOHNSON, Appellant, v. T.L. CANNON MANAGEMENT et al., Respondents.
Ramos & Ramos, Buffalo (Joshua I. Ramos of counsel), for appellant. Hamberger & Weiss, Buffalo (Kristine Machelor of counsel), for T.L. Cannon Management and another, respondents.
Ramos & Ramos, Buffalo (Joshua I. Ramos of counsel), for appellant.
Hamberger & Weiss, Buffalo (Kristine Machelor of counsel), for T.L. Cannon Management and another, respondents.
Before: EGAN JR., J.P., ROSE, CLARK, MULVEY and AARONS, JJ.
AARONS, J.Appeal from a decision of the Workers' Compensation Board filed October 20, 2014, which ruled, among other things, that claimant did not give timely notice of injury and denied his claim for workers' compensation benefits.
Claimant, a broiler cook at a restaurant, allegedly sustained a work-related injury in February 2012. While claimant immediately sought medical treatment, he did not apply for workers ' compensation benefits until April 2013. The employer and its workers' compensation carrier objected to the claim. Following a hearing, the Workers' Compensation Law Judge, among other things, concluded that claimant did not provide timely notice of the alleged accident to the employer and disallowed claimant's claim. The Workers' Compensation Board subsequently adopted the findings and decision of the Workers' Compensation Law Judge. Claimant now appeals.
We affirm. A claimant seeking workers' compensation benefits must give the employer written notice of the claim within 30 days of sustaining a compensable injury (see Workers' Compensation Law § 18 ; Matter of Dixon v. Almar Plumbing, 111 A.D.3d 1230, 1232, 977 N.Y.S.2d 101 [2013] ; Matter of Flynn v. Ace Hardware Corp., 38 A.D.3d 1143, 1144, 833 N.Y.S.2d 682 [2007] ). A claimant's failure to give timely written notice may be excused in situations where notice could not be given, the employer or its agent had knowledge of the accident or the employer did not suffer any prejudice (see Matter of Rankin v. Half Hollow Hills Cent. Sch. Dist., 105 A.D.3d 1242, 1242, 964 N.Y.S.2d 684 [2013] ; Matter of Dusharm v. Green Is. Contr., LLC, 68 A.D.3d 1402, 1403, 890 N.Y.S.2d 728 [2009] ). The Board, however, is not required to excuse a claimant's failure to give timely notice even where one of those grounds is proven (see Matter of Bennett v. Putnam N. Westchester BOCES, 123 A.D.3d 1397, 1398, 1 N.Y.S.3d 406 [2014] ). Such decision lies within the Board's discretion (see Matter of Dudas v. Town of Lancaster, 90 A.D.3d 1251, 1252–1253, 935 N.Y.S.2d 172 [2011] ).
At the hearing, claimant's supervisor testified that he did not recall claimant ever reporting an injury to him. The supervisor further testified that whenever an employee suffers an injury at work, an accident report must be completed in the presence of the employee, and such a report was not completed concerning claimant's alleged work injury. While claimant testified that he orally notified his supervisor about his accident, the record is devoid of any documentation to substantiate claimant's testimony. Furthermore, to the extent that claimant's version of the events conflicted with that of his supervisor, such credibility determinations by the Board are accorded great deference (see Matter of Rankin v. Half Hollow Hills Cent. Sch. Dist., 105 A.D.3d at 1242, 964 N.Y.S.2d 684 ; Matter of Papadakis v. Volmar Constr., Inc., 17 A.D.3d 874, 875, 793 N.Y.S.2d 263 [2005] ). Based on the foregoing and given the 14–month delay between claimant's accident and the filing of his claim for workers' compensation benefits, we discern no basis to disturb the Board's determination (see Matter of Bennett v. Putnam N. Westchester BOCES, 123 A.D.3d at 1399, 1 N.Y.S.3d 406 ; Matter of Dixon v. Almar Plumbing, 111 A.D.3d at 1232, 977 N.Y.S.2d 101 ).In light of our determination, it is unnecessary to address claimant's remaining contention.
ORDERED that the decision is affirmed, without costs.
EGAN JR., J.P., ROSE, CLARK and MULVEY, JJ., concur.