Matter of Johnson v. T.L. Cannon Management , 44 N.Y.S.3d 555 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 8, 2016 520457
________________________________
In the Matter of the Claim of
KEVIN JOHNSON,
Appellant,
v
T.L. CANNON MANAGEMENT et al., MEMORANDUM AND ORDER
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: October 17, 2016
Before: Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.
__________
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.
__________
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.
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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 AD3d
1230, 1232 [2013]; Matter of Flynn v Ace Hardware Corp., 38 AD3d
1143, 1144 [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 AD3d 1242, 1242 [2013];
Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402, 1403
[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 AD3d 1397, 1398 [2014]). Such decision lies within
the Board's discretion (see Matter of Dudas v Town of Lancaster,
90 AD3d 1251, 1252-1253 [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 AD3d at 1242; Matter of Papadakis v
Volmar Constr., Inc., 17 AD3d 874, 875 [2005]). Based on the
foregoing and given the 14-month delay between claimant's
accident and the filing of his claim for workers' compensation
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benefits, we discern no basis to disturb the Board's
determination (see Matter of Bennett v Putnam N. Westchester
BOCES, 123 AD3d at 1399; Matter of Dixon v Almar Plumbing, 111
AD3d at 1232).
In light of our determination, it is unnecessary to address
claimant's remaining contention.
Egan Jr., J.P., Rose, Clark and Mulvey, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court