| Matter of Dusharm v Green Is. Contr., LLC |
| 2009 NY Slip Op 09346 [68 AD3d 1402] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Jon P. Dusharm,Appellant, v Green Island Contracting, LLC, et al., Respondents. Workers'Compensation Board, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, Liverpool (Susan B. Marris of counsel), for GreenIsland Contracting, LLC and another, respondents.
Kane, J. Appeal from a decision of the Workers' Compensation Board, filed August 7, 2008,which, among other things, ruled that claimant failed to give timely notice of his injury to hisemployer.
Claimant, a labor supervisor for a highway construction company, allegedly sustained awork-related back injury in April 2006, but did not seek medical treatment until May 2007 anddid not apply for workers' compensation benefits until August 2007. Following a hearing, aWorkers' Compensation Law Judge awarded claimant benefits. The Workers' CompensationBoard reversed, concluding that claimant failed to provide his employer with timely noticepursuant to Workers' Compensation Law § 18. Claimant appeals.
We affirm. Workers' Compensation Law § 18 requires claimants seeking benefits toprovide their employers with written notice of a compensable injury "within thirty days after theaccident causing such injury" (seeMatter of Miner v Cayuga Correctional Facility, 14 AD3d 784, 785 [2005]). Claimantadmittedly did not file timely written notice. Failure to provide such [*2]notice bars any claim, unless the Board excuses that failure on theground that notice could not be given, the employer or its agent had knowledge of the accident,or the employer was not prejudiced (see Workers' Compensation Law § 18). TheBoard is not required to excuse a claimant's failure to give timely written notice even if one ofthese grounds is proven; the matter rests within the Board's discretion. Although claimanttestified that he notified his supervisor within minutes after his accident, thus providing oralnotice to his employer's agent, "resolution of the sufficiency of a claimant's oral notice is amatter within the exclusive province of the Board" (Matter of Pisarek v Utica Cutlery, 26 AD3d 619, 620 [2006]).
Here, the Board refused to excuse claimant's lack of written notice. Claimant's testimonyindicated that his supervisor did not take him seriously and never filed an accident report. TheBoard considered the claim suspect based upon claimant's delay in seeking medical treatmentand filing his claim, his failure to initially mention the work injury to his medical providers, hisprevious 20-year history of back pain, his inconsistent statement to an independent medicalexaminer that he had never experienced difficulties with his back prior to the accident, and hisfailure to miss any time from work due to this accident for more than a year thereafter. Thesecircumstances prejudiced the employer's ability to investigate the claim (compare Matter of Ewool v Franklin Hosp.Med. Ctr., 49 AD3d 1019, 1020 [2008], lv denied 10 NY3d 711 [2008]; Matter of Flynn v Ace HardwareCorp., 38 AD3d 1143, 1144-1145 [2007]), which affected the Board's determination tonot excuse claimant's untimely written notice despite the oral notice. As the Board'sdetermination constitutes an exercise of its discretion based upon substantial evidence, we see nobasis to disturb its decision.
Cardona, P.J., Peters, Stein and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.