| Matter of Dudas v Town of Lancaster |
| 2011 NY Slip Op 09050 [90 AD3d 1251] |
| December 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kevin A. Dudas, Appellant, v Townof Lancaster et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Hamberger & Weiss, Buffalo (Russell D. Hall of counsel), for Town of Lancaster andanother, respondents.
Egan Jr., J. Appeal from a decision of the Workers' Compensation Board, filed December 3,2009, which ruled, among other things, that claimant did not give timely notice of injury anddenied his claim for workers' compensation benefits.
Claimant, a laborer for the employer's Department of Recreation, allegedly injured his rightankle on February 28, 2007 when he slipped on a patch of ice at the employer's Town Hall.Claimant continued to work and did not seek medical treatment until approximately 10 dayslater, when he presented at the local emergency room complaining of pain and swelling. Whenthese symptoms persisted, claimant sought treatment from an orthopedist in May 2007 and,following an MRI, the prospect of surgical intervention was discussed. Despite claimant'songoing difficulties and treatment, he did not report his injury to the employer until June 27,2007.
The employer's workers' compensation carrier initially authorized medical care, but theemployer and the carrier (hereinafter collectively referred to as the employer) controverted theclaim following receipt of the emergency room records, which indicated that claimant twisted his[*2]ankle falling off a porch, thus raising a question as to whetherthe underlying injury actually was work related. Following a hearing, a Workers' CompensationLaw Judge found, among other things, that claimant failed to timely report the accident anddisallowed the claim. Upon review, the Workers' Compensation Board affirmed, prompting thisappeal.
Initially, we reject claimant's assertion that the employer waived the defense of timely notice(see Workers' Compensation Law § 18). This issue was squarely raised in theemployer's C-7 form filed in this matter (see Matter of Rowe v Oswego Hosp., 299 AD2d684, 684 [2002]), and thereafter was addressed at both the September 2008 and October 2008hearings. Thus, regardless of which hearing may be viewed as the first hearing at which claimantoffered sworn testimony (see Workers' Compensation Law § 18), it is apparent thatall "parties were fully aware that notice was at issue" (Matter of Hosie v New York Tel.Co., 60 AD2d 715, 716 [1977]; see Matter of Jocher v Piel Bros., 13 AD2d 580,580-581 [1961]; compare Matter of Lewis v New York Daily News, 43 AD2d 607,607-608 [1973]).
Turning to the merits, Workers' Compensation Law § 18 requires a claimant to providehis or her employer with written notice of a compensable injury "within thirty days after theaccident causing such injury." Although the failure to provide timely notice may be excusedwhere, insofar as is relevant to this appeal, the employer has not been prejudiced thereby(see Workers' Compensation Law § 18; Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402, 1403[2009]; Matter of Ewool v FranklinHosp. Med. Ctr., 49 AD3d 1019, 1019-1020 [2008], lv denied 10 NY3d 711[2008]), such decision remains a matter committed to the Board's sound discretion (seeMatter of Dusharm v Green Is. Contr., LLC, 68 AD3d at 1403). Here, despite ongoingsymptoms, claimant continued working and delayed both reporting the accident and seekingtreatment, which may well have permitted claimant's condition to worsen and, more to the point,prevented the employer from promptly investigating the underlying incident. Under thesecircumstances, we cannot say that the Board abused its discretion in disallowing the claim.
Mercure, A.P.J., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the decision isaffirmed, without costs.