| Matter of Ewool v Franklin Hosp. Med. Ctr. |
| 2008 NY Slip Op 02075 [49 AD3d 1019] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Waldrine Ewool, Appellant, vFranklin Hospital Medical Center et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Stewart, Greenblatt, Manning & Baez, Syosset (Patrick M. Conroy of counsel), for FranklinHospital Medical Center and another, respondents.
Carpinello, J. Appeal from a decision of the Workers' Compensation Board, filed February 9,2007, which ruled that claimant failed to give timely notice of his injury to his employer.
On July 13, 2003, claimant was employed as a medical lab technologist when, in anunwitnessed accident, his left knee was allegedly injured when he dropped a box on it. He did notreport the accident to the employer within 30 days of the occurrence.[FN*]Claimant's employment was eventually terminated for unrelated reasons in September 2004. InDecember 2004, claimant filed a claim for workers' compensation benefits on the basis of his leftknee injury and began treatment for that injury and purported consequential injuries to his rightknee and lower back. The employer and its workers' compensation carrier (hereinaftercollectively [*2]referred to as the employer) controverted theclaim based on late notice. At the conclusion of the hearings, the Workers' Compensation LawJudge awarded claimant benefits. The Workers' Compensation Board reversed, determining thatclaimant's notice of injury was not timely and that the Workers' Compensation Law Judge erredin finding no prejudice to the employer. Claimant appeals and we affirm.
Pursuant to the Workers' Compensation Law, a claimant seeking workers' compensationbenefits must provide his or her employer with notice of a compensable injury "within thirty daysafter the accident causing such injury" (Workers' Compensation Law § 18; see Matter of Flynn v Ace HardwareCorp., 38 AD3d 1143, 1144 [2007]; Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784, 785[2005]; Matter of Dempster v United Parcel Serv., 280 AD2d 722, 723 [2001]; Matterof Ray v Waldbaums, Inc., 276 AD2d 838, 838 [2000]). Failure to furnish timely notice maybe excused by the Board if, among other reasons, the employer has not been prejudiced by theuntimely notice (see Workers' Compensation Law § 18; Matter of Miner vCayuga Correctional Facility, 14 AD3d at 785; Matter of Ray v Waldbaums, Inc.,276 AD2d at 838). If a lack of prejudice to the employer is asserted, "a claimant bears the burdenof demonstrating that the employer was not prejudiced by any delay" (Matter of Flynn v AceHardware Corp., 38 AD3d at 1144; see Matter of Miner v Cayuga CorrectionalFacility, 14 AD3d at 785; Matter of Dempster v United Parcel Serv., 280 AD2d at723).
In the present case, there is no dispute that claimant did not provide timely notice of hisinjury, and the record reveals that claimant presented no evidence that the employer did notsuffer prejudice as a result of claimant's delay. Notably, claimant continued working after theinjury, and he failed to seek appropriate medical treatment for more than 17 months. Inasmuch assubstantial evidence supports the Board's conclusion that claimant failed to demonstrate that theemployer was not prejudiced by the delay, we decline to disturb its decision (see Matter of Baker v E.J. Constr. Group,Inc., 26 AD3d 652, 653 [2006]; Matter of Miller v North Shore Univ. Hosp., 13 AD3d 862, 863[2004].
Claimant's remaining contentions have been considered and found to be without merit.
Peters, J.P., Kane, Kavanagh and Stein, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote *: Claimant asserted that he orallyreported the injury to a supervisor in September 2003.