Is Failure to Provide Written Notice to an Employer Still a Viable Defense? Of Course it Is!

One of the more seemingly futile defenses to a workers’ compensation claim is the defense originating from Section 18 of the Workers’ Compensation Law requiring a claimant to provide written notice to the employer within 30 days of an incident. The statute itself provides that late notice can be excused, provided the employer had actual notice or if the employer did not suffer any prejudice for the late notice. In many cases, the WCB has excused late notice to the employer in one way or another. However, in 2017, the Appellate Division heard three cases that has breathed some life back into the defense and provided us with some guidance on how to best handle this defense.

Last year, the Appellate Division promulgated Logan v. New York City Health & Hospital Corp., 139 A.D.3d 1200 (3rd Dept. 2016), which essentially held that notice of an accident is notice of any and all injuries flowing therefrom. In this case, the claimant had reported a left knee injury as a result of a slip and fall. However, one year later, when she filed a C-3, she included neck pain, shoulder pain, and headache. The Appellate Division found that the employer had notice of the accident and therefore, late notice of the subsequent injury sites could be excused. This decision certainly took the wind out of the sails of the viability of this defense.

However, the decision in Rydstrom v. Precision Carpentry of Westchester, Inc., 150 A.D.3d 1602 (3rd Dept. 2017), reaffirms that it is the claimant’s burden to prove that there is no prejudice to the employer. In this case, the claimant testified that he did not give notice because he was afraid that he would be fired and that he believed the injury would self-resolve. The Appellate Division affirmed the Board’s conclusion that this was a situation where notice could not have been given and that the employer did not have actual knowledge of the incident. Indeed, it affirmed that the Board finding that the claimant had failed to demonstrate the employer was not prejudiced as a result of late notice, specifically noting that the delay in seeking treatment aggravated the injury and did not permit the employer an opportunity to effectively investigate the claim by interviewing coworkers.

In Xie v. JP Morgan Chase, 150 A.D.3d 1360 (3rd Dept. 2017), the Appellate Division affirmed the disallowance of a claim via Section 18, as the employer did not have actual knowledge of an injury. At issue were a series of emails sent by the claimant to her supervisor regarding the ergonomics of her workstation. The Appellate Division found that the emails, coupled with employer testimony, was sufficient to demonstrate that they were aware that claimant had requested a keyboard tray for her work station, but not that the work station set up was causing her neck complaints.

In contrast, there is Kinkhebwala v. ADP Total Source SLXIX, 2017 NY SLIP OP 09212 (12/28/17). The claimant testified that verbal notice had in fact been given to his supervisor. What delayed actual written notice was a language barrier, as the claimant spoke Gujarati. This was an excusable delay by the claimant.

What can we learn from these cases? First, lack of employer notice still a viable defense. What is needed is a thorough examination of the circumstances surrounding the employer’s notice of the injury. Specifically, it is important to know whether or not the employer would have been able to conduct any internal investigations. Certainly, employers will differ from site to site, but any internal policy that can demonstrate some modicum of an investigation that was delayed as a result of a failure of written notice will go far in ensuring this defense can work for denial of the claim. Further, medical records need to be scrutinized in order to provide a demonstration that because of the late notice, the claimant’s injuries were aggravated. Finally, it needs to be demonstrated that there was no real impediment to the claimant in providing written notice as required by law. With this bit of information, a Section 18 notice defense can be strengthened and, potentially, a successful defense.

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