Understanding the Notice and Statute of Limitations Defenses in New York

Greg LoisAn employer must provide statutory benefits to employees who have an accident and sustain an injury which arises out of and in the course of employment. It follows that an employer must be notified of the accident and any resulting injury, within a reasonable time, so that it has an opportunity to determine if the claimant is entitled to benefits, and the extent of those benefits, before it can be held responsible for compliance.

Notice to the Employer.

The employee must provide notice to the employer within 30 days after the accident causing injury or death to the employee. WCL §18. The notice should be in writing and provide:

  • The name and address of the employee;
  • The time of the accident causing the injury;
  • The place of the accident;
  • The nature of the injury sustained by the employee;
  • The cause of the injury; and
  • The signature of the employee, or a person on behalf of the injured employee.

​Manner of transmission.

If the notice is sent to the employer via mail, the notice must be sent via registered mail to the last known place of business. WCL § 18.

If the notice is delivered in person, notice must be handed to a partner (if it is a partnership) or someone authorized to receive process (if the employer is a corporation). WCL §18.

Verbal notice – in lieu of written notice – may be sufficient if the employer can not show prejudice.

Timely notice gives the employer the ability to adequately investigate the circumstances of the accident when information is available and witnesses can recall the event. Ross v. New York Tel. Co., 398 N.Y.S.2d 915 (3d Dep’t 1977). Failure to give proper and timely notice may prejudice the rights of the employer to the extent that it may be found to be relieved of its obligation to provide benefits under the law. WCL § 18; Serafin v. Pleasant Valley Wine Co., 470 N.Y.S.2d 874 (3d Dep’t 1983); Babington v. Yellow Taxi Corp., 220 N.Y.S. 420 (3d Dep’t 1927).

Notice may be actual or constructive. Buchanan v. Deposit Cent. School, 179 N.Y.S.2d 204 (3d Dep’t 1958); Goldin v. Max Schenck & Bros.Inc.,151 N.Y.S.2d 779 (3d Dep’t 1956). Constructive can be found where:

  • The events, facts and circumstances surrounding the accident provide notice to the employer; and
  • The employer was not prejudiced by the lack of formal notice.

The employer’s report (Form C-2 or FROI-00) is not sufficient to be relied upon as a claim for compensation. Bielat v. Alco Products, Inc., 280 N.Y.S.2d 967 (3d Dep’t 1967).

Failure to provide timely notice will be excused when:

  • Notice for some reason could not be given – such as when the claimant is hospitalized and in a coma; or
  • The employer had knowledge of the accident – like cases where the employer provides first aid at the time of the accident – or takes the employee to the emergency room; or
  • The employer has not been prejudiced.

​What constitutes Employer Prejudice?

As we have seen (above) an employee must provide notice to the employer in order to obtain benefits. That notice must come within 30 days – but the claimant can report it later – and get benefits – if the employer is not prejudiced by this late reporting.

Whether or not late reporting prejudices the employer is a fact question for the Board. The burden of proof rests with the claimant to demonstrate {“Substantial evidence” standard) that the employer was provided with oral notice and that the employer’s defense was not prejudiced. Late notice may also be excused by the WCB without consideration of prejudice if the claimant was not aware of the seriousness of the injury, or the causal relationship of the injury to the employment. Claim of McEnaneney, 426 N.Y.S.2d 440 (3d Dep’t 1981); Peters v. Putnam Hosp. Center, 536 N.Y.S.2d 239 (3d Dep’t 1989); Blain v. Emsig Mfg. Corp., 671 N.Y.S.2d 533 (3d Dep’t 1998).

In a case decided December 15, 2011, the Appellate Division reviewed the denial of a claim based on the failure of the claimant to provide timely notice to the employer. In Dudas v. Town of Lancaster, the claimant allegedly injured his ankle in a slip on ice while working at Town Hall on February 28, 2007.10 The employee continued to work and did not seek medical treatment until 10 days later. The claimant reported the injury as work-related on June 27, 2007. The employer filed denial pleadings raising “notice” as a defense. The employer also obtained the original emergency room intake records, in which the claimant was recorded as stating he was injured when he “fell off a porch” – a story at odds with his “slip on ice at Town Hall” claim.

Here, the Board disallowed the claim and the Appellate Division upheld that denial, as the claimant’s failure to report the injury within the time period required by law (30 days) prejudiced the employer’s ability to investigate the underlying accident.

Two Year Statute of Limitations – Section 28.

A claim for compensation must be filed with the WCB within two (2) years of the occurrence of the accident causing injury or death. WCL § 28. A claim for disability caused by occupational disease must be filed within two years after the disablement and also after the claimant knew or should have known that the disease causing the disability is or was due to the nature of the employment. Hastings v. Fairport Cet. School Dist., 710 N.Y.S.2d 455 (3d Dep’t 2000); Grainero v. Northern Westchester Hosp., 695 N.Y.S.2d 762 (3d Dep’t 1999). The WCB can decided (within its discretion) that the date of disability is the date of last employment – rather than the date medical treatment was provided (if earlier).

When Statute of Limitations Defense MUST be raised.

The employer must raise all defenses under § 18 (“notice”) and § 28 (two-years to file claim) at the very first hearing. The failure of the employer to raise the statute of limitations defense – that the claim is time-barred – at the first hearing will result in that defense being waived. The Law requires that the defense be raised at the first hearing ‘at which all parties in interest are present.’WCL § 28.

​Occupational disease.

The statute of limitations is different for occupational disease than for accidental injury. The claim for occupational disease disability must be filed within two years after disablement and after the claimant “knew or should have known that the disease is or was due to the nature of the employment.” WCL § 28. Generally speaking, this means two years from when the claimant is specifically told his condition may be work-related.

Infants & Mental Incompetents.

The Statute of Limitations does not run against infants or mental incompetents if no committee or guardian has been appointed. WCL § 115. A mental incompetent is defined as “one who is unable to protect his or her legal rights because of an overall inability to function in society.” This is the same definition for insanity as found in the Civil Practice Law and Rules, N.Y.C.P.L.R. § 208.

Does payment of benefits toll the statute of limitations for providing notice?

Yes. Medical expenses, wages, and funeral expenses provided before a claim is filed or notice is given enlarge the time for the claimant to file notice or a claim. This is so a claimant is not lulled into not filing because medical expenses and wages are being provided.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com