Claim of Dudas v. Town of Lancaster
Opinion of the Court
The employer’s workers’ compensation carrier initially authorized medical care, but the employer and the carrier (hereinafter collectively referred to as the employer) controverted the claim following receipt of the emergency room records, which indicated that claimant twisted his ankle falling off a porch, thus raising a question as to whether the underlying injury actually was work related. Following a hearing, a Workers’ Compensation Law Judge found, among other things, that claimant failed to timely report the accident and disallowed the claim. Upon review, the Workers’ Compensation Board affirmed, prompting this appeal.
Initially, we reject claimant’s assertion that the employer waived the defense of timely notice (see Workers’ Compensation Law § 18). This issue was squarely raised in the employer’s C-7 form filed in this matter (see Matter of Rowe v Oswego Hosp., 299 AD2d 684, 684 [2002]), and thereafter was addressed at both the September 2008 and October 2008 hearings. Thus, regardless of which hearing may be viewed as the first hearing at which claimant offered sworn testimony (see Workers’ Compensation Law § 18), it is apparent that all “parties were fully aware that notice was at issue” (Matter of Hosie v New York Tel. Co., 60 AD2d 715, 716 [1977]; see Matter of Jocher v Piel Bros., 13 AD2d 580, 580-581 [1961]; compare Matter of Lewis v New York Daily News, 43 AD2d 607, 607-608 [1973]).
Turning to the merits, Workers’ Compensation Law § 18 requires a claimant to provide his or her employer with written notice of a compensable injury “within thirty days after the accident causing such injury.” Although the failure to provide timely notice may be excused where, insofar as is relevant to this appeal, the employer has not been prejudiced thereby (see Workers’ Compensation Law § 18; Matter of Dusharm v Green Is. Contr., LLC, 68 AD3d 1402, 1403 [2009]; Matter of Ewool v Franklin Hosp. Med. Ctr., 49 AD3d 1019, 1019-1020 [2008], lv denied 10 NY3d 711 [2008]), such decision remains a matter
Mercure, A.EJ., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed, without costs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.