LOIS Partner Connor Wetherington and Paralegal Chrystalla Karamanis obtained a Board Panel Decision reversing establishment found at the trial level, securing a win for their employer-client, a Membership-Only Warehouse Club, in a New York Workers’ Compensation claim. The Claimant alleged a left shoulder injury after purportedly lifting boxes of milk in the dairy cooler. However, the Claimant did not report the alleged injury until 88 days later. This is also when the Claimant began to lose time from work due to the injury. Of note, the Claimant had only worked for the Employer for two (2) days prior to the alleged injury.
At the trial, Wetherington made the Claimant concede that he failed to timely report the alleged injury despite being award of the Employer’s injury reporting process outlined in the Employee Handbook. The Claimant conceded to filing a personal letter the Workers’ Compensation Board explicitly stating he gave late notice. The Claimant further conceded to going out of work due to the alleged injury getting worse. Wetherington presented two witnesses who both confirmed the Employer was not aware of the alleged injury until 88 days later. The Law Judge agreed and acknowledged that notice was not given timely pursuant to WCL Section 18; yet, the Law Judge excused the late notice and established the claim on the basis that the Employer was not prejudiced because an investigation was carried out and incident report completed.
Unphased, Wetherington and Karamanis appealed the decision to the Board Panel and were granted a reversal. In the decision, the Board Panel that reporting the alleged injury 88 days after the fact was blatantly untimely under Section 18. The Board Panel agreed that there was insufficient, credible evidence to warrant an excuse of untimely notice due to the Claimant’s condition deteriorating in significant and subsequent period on non-report. The Board Panel further found there to be insufficient evidence to prove the Carrier and Employer were not prejudiced by the Claimant’s delay in reporting since his alleged condition deteriorated over the 88 days. Thus, the Board Panel ruled that the Claimant failed to provide timely notice under WCL Section 18 and disallowed the claim in its entirety.
