What Do You Think: Could N.Y. Worker Injured When Rail Fell on his Shoulder File Claim Nearly Two Years Later?

02 Jan, 2024 Chris Parker


Long Island City, NY (WorkersCompensation.com) -- Filing a late workers’ compensation claim for a compensable claim is not always the claim’s death knell. In New York, for example, there are three potential exceptions to the 30-day deadline for notifying the employer of a workplace accident.

But as one case shows, courts will look at the facts of the case to determine whether an exception applies.

The employee in that case injured his shoulder on July 17, 2019, when a railing he was helping to carry fell on him. He initially sought medical treatment three days later. According to the employee, he did not tell his employer about the accident because he did not think that the injury was that serious and he was afraid he would lose his job if he reported the accident.

In October 2020, the employee saw an orthopedic surgeon who diagnosed a massive rotator cuff injury. At that point, the employee had already received physical therapy and a corticosteroid injection that had minimal effect on his pain.

The employee continued working without any lost time until Dec. 28, 2020. On that day, he informed his employer he was having surgery on his shoulder the following day.

The first time he gave written notice of the claim was March 18, 2021, when he filed a claim for workers' compensation benefits. A Workers' Compensation Law Judge established the claim for work-related injuries to the employee’s neck and left shoulder.

The Workers' Compensation Board denied the claim, ruling that the employee did not give timely written notice of injury. The claimant challenged the Board’s decision in court.

The court explained that a claimant seeking workers' compensation benefits must give the employer written notice of the claim within 30 days of sustaining the injury. Failure to give timely notice is fatal to the claim, unless the board excuses the failure on the ground that:

(1) Timely notice could not be given;
(2) The employer or its agent had knowledge of the accident; or
(3) The employer did not suffer any prejudice.

Was the employee's claim timely?
A. No. He gave notice beyond the 30-day limit and none of the exceptions applied.
B. Yes. The employer didn’t suffer any prejudice from the late filing.

If you selected A, you agreed with the court in Andino v. Structural Preservation Sys., No. 535533 (N.Y. App. Div. 12/14/23), which held that the Board properly denied the claim.

The court noted that despite medical treatment, a diagnosis, and planned surgery in October 2020, the employee still did not notify his employer of the accident.

“In light of claimant's complaints of ongoing pain since the accident and his prior medical treatment, including surgery, the Board rationally concluded that claimant had not provided a sufficient reason for failing to inform the employer of his work-related injuries until March 2021,” the court wrote.

The court rejected the notion that the employer didn’t suffer any prejudice from the long delay. It pointed out that because the employer was unaware that the worker’s injuries were work-related, it had no opportunity to investigate the incident.

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