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Workers' Compensation Board

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Case # G1404005
Date of Accident: 07/15/2015
District Office: NYC
Employer: International Asbestos
Carrier: Starr Indemnity & Liability Co.
Carrier ID No.: W202683
Carrier Case No.: 005616000703WC01
Date of Filing of Decision: 02/27/2017
Claimant's Attorney: Andrew Kaminski, Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on January 24, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 15, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant gave timely notice pursuant to Workers' Compensation Law (WCL) § 18.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim because the claimant did not give timely notice of the accident to his employer pursuant to WCL § 18.

The Board Panel majority reversed the WCLJ's decision, finding the employer had actual knowledge of the accident the day after it occurred.

The dissenting Board Panel member would affirm the WCLJ and disallow the claim because the claimant did not give proper notice pursuant to WCL § 18.

The carrier filed an application for Mandatory Full Board Review on September 14, 2016.

The claimant did not file a timely rebuttal.

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

FACTS

On August 13, 2015, the claimant, a construction worker, filed a C-3 (Employee Claim), alleging that he was pushing a cart with construction debris on July 14, 2015, when he injured his right arm and left calf/leg. The claimant indicated that he gave his employer notice of his injury, but he did not indicate to whom he gave notice, the date notice was given, or if notice was given orally or in writing. The claimant indicated that a co-worker saw the injury happen.

The carrier controverted the claim, contending, among other defenses, that claimant was not injured in the course of his employment and failed to provide timely notice. The employer contends that it did not receive notice until October 29, 2015 (SROI-04 filed January 7, 2016).

Dr. Kozikowski indicated in Form C-4 (Doctor's Initial Report) filed with the Board on August 23, 2015, that he examined the claimant on August 1, 2015, and the claimant provided a history of injuring himself at work on July 14, 2015. The doctor noted that the claimant first missed work on July 15, 2015.

The claimant's timesheet for the week beginning on July 13, 2015, was filed with the Board on October 23, 2015, and indicated that the claimant worked on July 13, 2015, for four hours, did not work on July 14, 2015, and worked on July 15, 2015, for eight hours.

Dr. Bleicher indicated in Form C-4.2 (Doctor's Progress Report) filed with the Board on December 11, 2015, that the claimant was injured on July 14, 2015.

In a notice of decision filed on December 17, 2015, the WCLJ found that per the claimant the correct date of accident was July 15, 2015.

The claimant testified at a hearing held on February 3, 2016, that he was working on July 15, 2015, removing cement pieces in a wheelbarrow at a school construction site in the Bronx. He hit a piece of plywood while trying to unload the wheelbarrow and hurt his left leg and right shoulder. He wasn't able to drive after the accident and a co-worker drove him home. He did not tell his foreman about the accident on the day it happened and he did not return to work the next day due to the pain. He had his co-worker tell his supervisor the next day that he wasn't coming in to work that day due to the pain. The accident did not happen on July 14, 2015, and that was a mistake on his C-3 form. He did not personally tell anyone at his employment that he was injured. He was not present when his co-worker told his supervisor about his work accident.

The claimant's co-worker testified at a hearing held on February 3, 2016, that he and the claimant had worked together in the past. He and the claimant were working together at a school in the Bronx on July 15, 2015. He did not see the claimant's accident, but the claimant told him that he got hurt while pushing a cart with concrete. The claimant complained of pain in his right shoulder and the right part of his body. Claimant was unable to drive, so he drove the claimant home. The claimant did not go back to work the next day and asked the co-worker to tell their supervisor that he would not be in. The witness testified that he told the supervisor, although he did not remember the supervisor's name, that the claimant would not be in because something happened during work the previous day. He did not complete an accident report for the claimant. The supervisor did not speak Polish.

At the conclusion of the February 3, 2016, hearing, the WCLJ found that the claimant's witness was not credible, the claimant reported the wrong date of accident, he did not give notice of the accident directly, notice of the specific accident wasn't given, and the carrier was prejudiced because it did not have an opportunity to investigate the accident. The WCLJ disallowed the claim because timely notice was not given. That finding was memorialized by the WCLJ's amended notice of decision filed on February 8, 2016.

In his application for administrative review, claimant argued that the employer had actual notice of the injury and was not prejudiced by claimant's failure to provide timely written notice, and requested that the claim be established for injuries to his right shoulder and left knee, and surgery to the right shoulder be authorized.

In rebuttal, the carrier argued that the WCLJ properly disallowed the claim and found that the claimant did not give proper and timely notice of the accident pursuant to WCL § 18.

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' (see Matter of Hogencamp v Amscam, 2 AD3d 937 [2003]). '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' (Matter of Ray v Waldbaums, 276 AD2d 838 [2000] [additional citations omitted]). 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 Thousand v Human Resources Admin. Community Dev. Agency, 252 AD2d 664 [1998], lv denied 92 NY2d 816 [1998])" (Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784 [2005]; see also Matter of Lopadchak v R.W. Express LLC, 133 AD3d 1077 [2015]).

Here, the claimant testified that on the date of the accident he was unable to drive home from work because he was in pain and asked his co-worker to drive his car home. The claimant also testified that since he did not speak English, he asked the co-worker to notify the supervisor of the injury. The co-worker testified that he did not witness the accident but that the claimant had told him about the accident and that he did tell the supervisor of the accident the following day. The carrier produced no witnesses to contradict the testimony of the claimant and his co-worker.

The Full Board finds that the preponderance of the evidence in the record supports a finding that the employer acquired actual knowledge of the accident the day after it occurred, when claimant's co-worker notified the supervisor of the accident. Therefore, this claim is not barred by WCL § 18.

CONCLUSION

ACCORDINGLY, the WCLJ amended decision filed February 8, 2016, is REVERSED. The claim is established for compensable injuries to the claimant's right shoulder and left leg. The case is continued.