| Matter of Dixon v Almar Plumbing |
| 2013 NY Slip Op 07917 [111 AD3d 1230] |
| November 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Chris Dixon, Appellant, vAlmar Plumbing et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Foley, Smit, O'Boyle & Weisman, New York City (David L. Wecker of counsel), forAlmar Plumbing and another, respondents.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filedJanuary 11, 2013, which ruled, among other things, that claimant did not sustain acompensable injury and denied his claim for workers' compensation benefits.
Claimant allegedly injured his back while working as a plumber at Madison SquareGarden on Thursday, September 22, 2011. Claimant did not report to work the followingday and was laid off at the close of business on Monday, September 26, 2011. Claimantwas aware—prior to sustaining his purported injury—that a general layoffwas imminent and testified that, following this event, his coworkers—includingthe alleged witness to his injury—"scattered."
In November 2011—nearly two months after the allegedaccident—claimant filed a claim for workers' compensation benefits. Theemployer and its workers' compensation carrier controverted the claim contending,among other things, that claimant failed to provide timely notice thereof and did notsustain a work-related injury. Following a hearing, a Workers' Compensation Law Judgeexcused claimant's late notice and found that he had suffered a [*2]compensable injury. Upon administrative review, theWorkers' Compensation Board reversed and disallowed the claim, prompting this appeal.
We affirm. "Whether a compensable accident has occurred presents a question of factfor resolution by the Board and its decision will be upheld when supported by substantialevidence" (Matter of Rolleri vMastic Beach Ambulance Co., Inc., 106 AD3d 1292, 1292 [2013], lvdenied 21 NY3d 865 [2013] [citations omitted]; see Matter of Klamka v Consolidated Edison Co. of N.Y., Inc.,84 AD3d 1527, 1528 [2011]).[FN1]As noted previously, claimant filed for workers' compensation benefits approximatelytwo months after he was laid off, and the record contains conflicting proof as to, amongother things, the manner in which the injury allegedly occurred and whether the claimedaccident was witnessed by another coworker. Additionally, claimant's testimonyregarding his work schedule following his alleged injury does not coincide with theemployer's payroll records, and the Board found claimant's explanation of thisdiscrepancy to be unpersuasive. Based upon the inconsistencies between claimant'stestimony and certain documentary evidence, as well as the lack of contemporaneousmedical records, the Board found that claimant's testimony "was not credible" anddisallowed the claim. As "[t]he Board is the sole arbiter of witness credibility" (Matter of Denman v Cobbler'sRest., 106 AD3d 1289, 1290 [2013] [internal quotation marks and citationsomitted]; accord Matter ofHammes v Sunrise Psychiatric Clinic, Inc., 66 AD3d 1252, 1252 [2009]) and isnot bound by the Workers' Compensation Law Judge's determinations in this regard (see Matter of Nassar v MasriFurniture & Mdse., Inc., 91 AD3d 1022, 1022 [2012]; Matter of Ridgeway v RGRTARegional Tr. Serv., 68 AD3d 1219, 1220 [2009]), "the Board was entitled toreject claimant's version of events and to find that no accident occurred" (Matter of Neville v Jaber, 46AD3d 1137, 1138 [2007]; see Matter of Fortunato v Opus III VII Corp., 56 AD3d905, 906 [2008]).
The Board further found that, even assuming an accident occurred, claimant failed toprovide timely notice thereof. In this regard, Workers' Compensation Law § 18requires a claimant to provide his or her employer with written notice of a compensableinjury "within thirty days after the accident causing such injury." Although the failure toprovide such notice may be excused upon a finding by the Board that "notice could notbe given, the employer or its agent had knowledge of the accident, or the employer wasnot prejudiced" (Matter ofDusharm v Green Is. Contr., LLC, 68 AD3d 1402, 1403 [2009]), resolution ofthis issue lies within the Board's sound discretion (see id. at 1403).
Here, the record reflects that, prior to filing his claim for benefits, claimant failed toprovide timely written notice or otherwise notify the employer or its agent of the allegedinjury. Claimant conceded that he did not make a "[f]ormal report" of the incident to hisemployer, [*3]opting instead to "mention[ ]" to his unionshop steward—on his final day of work—"that [his] back was hurting."Even assuming that this fleeting comment constituted a report of injury, there is nothingin the record to suggest that the shop steward was an appropriate person to whom toreport such an occurrence (compare Matter of Rankin v Half Hollow Hills Cent. Sch. Dist.,105 AD3d 1242, 1242-1243 [2013]). Additionally, given claimant's delay inreporting the injury, as well as his inconsistent testimony regarding the severity of hisinjury and his efforts to seek medical treatment,[FN2]we cannot say that claimant met his "burden of demonstrating that the employer was notprejudiced [there]by" (Matter ofEwool v Franklin Hosp. Med. Ctr., 49 AD3d 1019, 1020 [2008], lvdenied 10 NY3d 711 [2008] [internal quotation marks and citation omitted]). Hence,we discern no basis upon which to disturb the Board's findings as to the notice issue (see Matter of Dudas v Town ofLancaster, 90 AD3d 1251, 1252-1253 [2011]). Claimant's remaining arguments,to the extent not specifically addressed, have been examined and found to be lacking inmerit.
Peters, P.J., McCarthy and Spain, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote 1: Despite claimant'sprotestations to the contrary, "Workers' Compensation Law § 21 (1), which affordsa presumption that an unwitnessed or unexplained workplace accident arose out of theinjured person's employment, has no bearing on this case as it cannot be utilized todemonstrate that an accident occurred in the first place" (Matter of Santiago v OtisvilleCorrectional Facility, 39 AD3d 1109, 1110 [2007]; see Matter of Gardner v NurziaConstr. Corp., 63 AD3d 1385, 1385 [2009]; Matter of Neville v Jaber, 46 AD3d 1137, 1138 [2007];Matter of Fedor-Leo v Broome County Sheriff's Dept., 305 AD2d 760, 760[2003]).
Footnote 2: In light of theseinconsistencies, the Board also properly rejected any assertion that the lack of timelynotice was occasioned by claimant's failure to initially appreciate the severity of hisinjury (see generally Matter of Oberson v Bureau of Ferry Aviation & Transp.,303 AD2d 795, 795 [2003], lv denied 100 NY2d 507 [2003], cert denied540 US 1151 [2004]).