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Case # G0303126
Date of Accident: 10/18/2009
District Office: NYC
Employer: Alliance for Health, Inc
Carrier: Fidelity & Guaranty
Carrier ID No.: W085005
Carrier Case No.:
Date of Filing of Decision: 04/05/2013
Claimant's Attorney: Turley, Redmond, Rosasco & Rosasco, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on March 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 21, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claim is barred by Workers' Compensation Law (WCL) § 18.

The Workers' Compensation Law Judge (WCLJ) established the claim for injuries to the back and right leg that resulted from an accident on October 18, 2009.

The Board Panel majority reversed the WCLJ's decision and disallowed the claim, concluding that the claim is barred by WCL § 18.

The dissenting Board Panel member would have affirmed the WCLJ and established the claim, finding that the WCLJ's credibility determination was reasonable and supported by substantial evidence.

In her application for Mandatory Full Board Review filed on July 20, 2012, the claimant argues that the claimant's failure to provide timely written notice should be excused because oral notice was given to the employer within 30 days, and also because there was no prejudice to the employer since the claimant did not realize the nature or extent of her injury until after the period for timely notice had expired.

In a rebuttal filed with the Board on August 20, 2012, the carrier argues that the Board Panel majority decision should be affirmed and the claim should be disallowed because the claimant failed to provide timely notice of her accident, as required by WCL § 18. The carrier contends that the claimant did not provide the employer any notice of the accident until six months after it allegedly occurred, and the employer's ability to investigate the accident was severely compromised by the late notice. The carrier further argues that the claimant's late notice cannot be excused because the claimant has not met her burden to show that there was no prejudice to the employer.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On June 23, 2010, the claimant filed a C-3 form to report that she was injured on October 18, 2009, while working as a home attendant at the home of a patient. The claimant alleged that she injured her back, right hip, and bilateral knees, and that she has radiating pain. She also indicated that she provided oral notice of her injuries to her supervisor on October 18, 2009. She further reported that she stopped working on March 10, 2010, due to her injuries.

On its C-7 form, the SIE objected to the claim for several reasons, including the issue of notice, pursuant to WCL § 18. The carrier alleged that the claimant failed to notify her employer of a work-related injury until March 8, 2010.

The first medical report in the record is a report of an MRI done on December 30, 2009, which indicates that Dr. Ramirez was the referring provider. The record contains no medical report from Dr. Ramirez from December 2009, and the earliest evidence of Dr. Ramirez's treatment of the claimant is a prescription note dated March 12, 2010, that confirms that the claimant was seen in the office for low back pain. However, the note provides no history of a work-related accident, and no opinion of causal relationship.

The earliest medical evidence that contains a work-related history of injury is a report of an examination on April 10, 2010, in which Dr. Li, the claimant's treating physician, noted that the claimant complained of pain in her lower back and right leg for five months due to "s/p pickup heavy during her working."

Reports from Dr. Li of two earlier examinations on March 13, 2010, and March 17, 2010, state that the claimant reported that she developed low back pain radiating into her right leg approximately four months ago from picking up heavy stuff. However, the report does not state that the injury occurred at work.

On October 5, 2010, the claimant testified that on October 18, 2009, she was working as a home attendant for the employer, and while she was changing the diaper for the patient and lifting the patient to change the sheets, she felt pain in her back. She finished her shift for the day and did not see a doctor. After October 18, 2009, she continued to work for the employer taking care of other patients. She notified the employer of her back pain one week later when she was asked to take care of the same patient she was caring for when she was injured. She told the employer she could not care for that patient because she had pain in her back from attending to the patient too much. The claimant told the coordinator for that patient's case, not the individual that normally assigns work to the claimant. She told the coordinator that she had strained herself to change the patient. She continued to work with pain until March 9, 2010. She stopped working at that time because the pain in her back wouldn't let her work, and she could hardly walk. She did not return to work after March 9, 2010. She went to the employer on March 10, 2010, with a certification from her doctor that she was unable to work. On that day, the employer made her fill out a report that she had injured herself in October. December 22, 2009, was the first time she saw a doctor for her back. She saw Dr. Ramirez, and he ordered an MRI, which showed that she had four herniated discs. During cross-examination, the claimant confirmed that she did not report the accident to anyone on the date it occurred. She also confirmed that March 10, 2010, was the first date that she told the employer that she was unable to work. She did not fill out an incident report prior to March 10, 2010.

On November 5, 2010, the benefits manager at the employer testified that as part of her duties, she administers the workers' compensation claims. She has held that position with the company for four and a half years. If an employee is injured at work, the injury is reported to the benefits manager. The employee is supposed to report the injury immediately to their supervisor or coordinator, and if they cannot reach the coordinator, the employee should call the human resources department. The employer needs to know within a day or so and then the employee is supposed to file an incident report. The benefits manager first became aware of the claimant's injury in April 2010. The benefits manager asked the claimant why she failed to report the injury when it occurred in October 2009. The claimant continued to work her regular schedule after October 2009, until March 9, 2010. In April 2010, the claimant reported that she had injured her lower back. The benefits manager explained that any injury, no matter how minor, must be reported to the employee's coordinator and to the benefits manager. The claimant had a prior work injury in June 2009, and she was counseled by the benefits manager's assistant, regarding the timing of her filing of that claim. The benefits manager's assistant is now deceased.

On November 5, 2010, the coordinator at the employer testified that she was the coordinator of the case on which the claimant was working on October 18, 2009, and she would have been the claimant's direct supervisor on that case. The claimant never reported an injury while she was working on that case. The patient on that case was bed-bound. The coordinator first became aware of the claimant's alleged work injury when human resources called her and told her that an aide reported that she had an incident on the case. The coordinator was not sure when she was told about the injury, but it may have been in October 2010. The benefits manager was the person who informed her of the alleged injury. The claimant never discussed her back problem with the coordinator.

After the testimony at the hearing on November 5, 2010, the parties provided oral summations. The WCLJ then established the claim for injuries to the back and right leg that resulted from an accident on October 18, 2009. The WCLJ noted that there was conflicting testimony as to whether claimant provided timely and proper notice to the employer but found that the claimant was credible when she testified that she provided timely and proper notice of her injuries to the employer. The WCLJ further noted that the employer witness shows systematic and thorough record keeping that fails to establish claimant provided proper notice. However, the WCLJ found that "based upon claimant's credible assertions combined with possible difficulties owing to her lack of English speaking ability, and the fact that a possible notice recipient no longer is with the company that I must come down in favor of the claimant on this issue."

The WCLJ's findings were set forth in a decision filed on November 10, 2010, and the carrier filed an application for administrative review.

LEGAL ANALYSIS

"Workers' Compensation Law § 18 requires that a claimant give his or her employer notice of an injury for which compensation is sought within thirty days after the accident causing the injury. Failure to give the required notice may be excused by the Board based upon a finding that such notice could not, for some reason, be given, or that the employer or an agent thereof had actual knowledge of the accident or death or, finally, that the employer was not prejudiced by the delay. No prejudice will be found to exist where the employer had actual independent knowledge of the event or where the delay neither aggravated the injury nor prevented the employer from properly investigating the claim" (Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784 [2005] [internal citations and quotation marks omitted]).

Here, it is undisputed that the claimant failed to give the employer written notice of her accident within 30 days, since she testified that she did not fill out an incident report prior to March 10, 2010, nearly six months after the accident occurred.

Nevertheless, the claimant's failure to provide timely written notice may be excused if the claimant provided oral notice of the accident. When it is alleged that prompt oral notice was provided to the employer or to the employer's agent, "resolution of the sufficiency of a claimant's oral notice is a matter within the exclusive province of the Board" (Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402 [2009] quoting Matter of Pisarek v Utica Cutlery, 26 AD3d 619 [2006]).

On her C-3 form, the claimant alleged that she orally notified the coordinator at the employer of the injury on October 18, 2009, the date that it occurred. During her testimony, she stated that she orally notified the coordinator of the injury one week after the accident occurred. However, the coordinator testified that she did not become aware of the claimant's alleged work injury until sometime in 2010, when human resources called her and told her that an aide reported that she had an incident on the case. The benefits manager testified that the claimant did not report that she had injured her lower back until April 2010.

"The Board is entitled to make its own factual findings and is not bound by the credibility determinations of a WCLJ (see Matter of Ortiz v Five Points Correctional Facility, 307 AD2d 634 [2003])" (Matter of Jones v New York State Dept. of Correction, 35 AD3d 1025 [2006]; see also Matter of Ridgeway v RGRTA Regional Tr. Serv., 68 AD3d 1219 [2009]).

The Full Board has considered the conflicting testimony on the issue of notice and finds that the testimony of the coordinator is more credible than that of the claimant. Specifically, the coordinator's testimony that she was not informed of the injury until 2010, is supported by the benefits manager's testimony that the claimant did not report the injury until 2010. As noted by the WCLJ, the "[e]mployer witness shows systematic and thorough record keeping that fails to establish [that the] claimant provided proper notice." As such, the Full Board finds that the claimant did not provide oral notice of her injury to the employer within 30 days of the date of accident.

As noted above, the claimant also argues that her failure to provide timely written notice should be excused because there was no prejudice to the employer.

The burden is on the claimant to show that the employer was not prejudiced by the lack of timely notice (Matter of Flynn v Ace Hardware Corp., 38 AD3d 1143 [2007]). The claimant can meet this burden by showing that "the employer had actual independent knowledge of the event or [that] the delay neither aggravated the injury nor prevented the employer from properly investigating the claim" (Matter of Thousand v Human Resources Admin., Community Dev. Agency, 252 AD2d 664 [1998], lv denied 92 NY2d 816 [1998]).

The Full Board finds that the claimant has not met her burden to prove that the employer was not prejudiced by her delay in providing notice of the alleged accident. Specifically, the claimant continued to work after the injury until March 2010. Further, there is no evidence that she sought any medical treatment related to her injury until December 2009, and there is no medical evidence that contains a report of a work-related history of injury until April 2010 (see Matter of Ewool v Franklin Hosp. Med. Ctr., 49 AD3d 1019 [2008]). As such, the Full Board finds that the employer was prejudiced because it was unable to conduct its own timely investigation into the accident.

Therefore, the Full Board finds that the claim is barred by WCL § 18 since there is insufficient evidence that the claimant gave timely notice of her alleged accident to the employer.

CONCLUSION

Accordingly, the WCLJ decision filed November 10, 2010, is REVERSED and the claim is disallowed. The case is closed.