Attorney Connor Wetherington Prevails On Appeal in Lunctime Injury Claim in New York

LOIS attorney Connor Wetherington was successful on appeal in getting an “on the premises” lunch time accident involving the neck, back, bilateral shoulders, and bilateral knees claim disallowed. At the February 24, 2020 trial, Wetherington developed the record obtaining numerous concessions as to the claimant’s delay in bringing the claim and the lunch time policies set by the employer. However, the trial judge found the claim to be compensable and established the claim, inclusive of lost time awards.

In response to LOIS’s appeal, the Board filed a Memorandum of Board Panel Decision on May 28, 2020. In the decision, the Board Panel found that the claim to be compensable because the accident occurred on the employer’s premises, but also found that the claimant failed to provide timely and proper notice pursuant to Section 18. Specifically, the Board Panel found that after a complete review of the evidence, the claimant was inconsistent in her testimony and filing of forms C-3 on the issue of notice. The claimant’s failure to provide notice of the work accident prejudiced the employer and carrier.

Accordingly, the claim was disallowed, and all awards and attorney’s fees were rescinded

This claim involved a lunch time accident that occurred on the employer’s premises on February 9, 2018. The claimant was in the break room and when she went to down, the chair moved out from under her, which caused her to fall. The claimant alleged injuries to the neck, back, bilateral shoulder, and bilateral knees. It should also be noted that the claimant did not file the claim until October 29, 2019.

Traditionally, in New York Workers’ Compensation, injuries that occur during lunch time are generally deemed to occur outside the scope of employment. However, except under limited circumstances, lunch time injuries such as where the employer continues to exercise authority over the employee during the lunch break can be found to have occurred in the scope of employment. Pursuant to WCL Section 18, claimants are obligated to provide notice of traumatic accidents within thirty (30) days. As such, we moved forward with denying the claim on the basis that the accident arose outside of the course and scope of employment, and on the basis of improper notice under WCL Section 18.

At the February 24, 2020 hearing, we were set to take the testimony of the claimant and our two employer witnesses. The claimant testified that following the accident, she continued to work full time and did not file a claim until one year and nine months after the accident. The claimant testified that there was no requirement to eat lunch on the premises. In fact, the Claimant testified that eating lunch on the premises was optional. The Claimant possessed the ability to come and go for lunch, and the ability to eat lunch at any establishment from which she bought lunch. Our employer witness testified that the employer did not become aware on the accident until after the claimant called the benefits manager on September 19, 2019. Unfortunately, our second employer witness, who was to testify on control, failed to appear at the hearing. The Law Judge then established the claim and found that the accident occurred during the scope of employment, and the Law Judge found that notice was proper. In obvious disagreement with the ruling, we appealed the decision.

The Board filed a Memorandum of Board Panel Decision on May 28, 2020. In the decision, the Board Panel found that because the accident occurred on the employer’s premises, the claimant was in the course employment. However, the Board Panel found that the claimant’s failure to provide notice of the work accident prejudiced the employer and carrier. Specifically, the Board Panel found that after a complete review of the evidence contained in the Boar file, the claimant was inconsistent in her testimony and filing of forms C-3 on the issue of notice. It was noted that by not filing medical reports for any alleged causally medical treatment until over one year and eight months after the February 9, 2018 accident prejudiced the employer and the carrier. Further, the Board Panel took notice of the different histories of the mechanism of injury and that the opinion on causal relationship was based on the claimant’s statements.

Therefore, the Board Panel found, upon a review of the record and based upon a preponderance of the evidence, that the claim for injuries involving the neck, back, bilateral knees, and bilateral shoulders was disallowed, as the claimant failed to provide timely notice to her employer pursuant to WCL Section 18, and that the claimant’s failure prejudiced you and the employer. Accordingly, the decision filed on February 27, 2020 is reversed, and all awards and attorney’s fees are rescinded. Finally, the Board Panel indicated that the case was closed.