Claim of Dusharm v. Green Island Contracting, LLC
In the Matter of the Claim of Jon P. Dusharm v. Green Island Contracting, LLC, Workers' Compensation Board
Full Opinion (html_with_citations)
Claimant, a labor supervisor for a highway construction
We affirm. Workersâ Compensation Law § 18 requires claimants seeking benefits to provide their employers with written notice of a compensable injury âwithin thirty days after the accident causing such injuryâ (see Matter of Miner v Cayuga Correctional Facility, 14 AD3d 784, 785 [2005]). Claimant admittedly did not file timely written notice. Failure to provide such notice bars any claim, unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced (see Workersâ Compensation Law § 18). The Board is not required to excuse a claimantâs failure to give timely written notice even if one of these grounds is proven; the matter rests within the Boardâs discretion. Although claimant testified that he notified his supervisor within minutes after his accident, thus providing oral notice to his employerâs agent, âresolution of the sufficiency of a claimantâs oral notice is a matter within the exclusive province of the Boardâ (Matter of Pisarek v Utica Cutlery, 26 AD3d 619, 620 [2006]).
Here, the Board refused to excuse claimantâs lack of written notice. Claimantâs testimony indicated that his supervisor did not take him seriously and never filed an accident report. The Board considered the claim suspect based upon claimantâs delay in seeking medical treatment and filing his claim, his failure to initially mention the work injury to his medical providers, his previous 20-year history of back pain, his inconsistent statement to an independent medical examiner that he had never experienced difficulties with his back prior to the accident, and his failure to miss any time from work due to this accident for more than a year thereafter. These circumstances prejudiced the employerâs ability to investigate the claim (compare Matter of Ewool v Franklin Hosp. Med. Ctr., 49 AD3d 1019, 1020 [2008], lv denied 10 NY3d 711 [2008]; Matter of Flynn v Ace Hardware Corp., 38 AD3d 1143, 1144-1145 [2007]), which affected the Boardâs determination to not excuse claimantâs untimely written notice despite the oral notice. As the Boardâs determination constitutes an exercise of its discretion based upon substantial evidence, we see no basis to disturb its decision.