Giving timely notice of an accident to an employer may be the single most important factor in a Workers’ Compensation case.
N.Y. Workers’ Compensation Law Section 18 requires that an employee must provide written notice of a work place injury to the employer within 30 days of the accident causing the injury for a claimant to receive workers’ compensation benefits. However, failure to provide such written notice can be excused where the Board, in its discretion, finds that notice could either not have been given, or the employer or one of its agents had knowledge of the accident and the employer had not suffered any prejudice by the lack of written notice.
In Matter of Kinkhabwala, the claimant had worked at a bakery, making and packaging bread. On April 3, 2015, claimant had a work accident where she twisted her leg as she was stacking boxes. She sought medical attention the next day, was removed from work due to her injury, and continued medical treatment. She filed a Workers’ Compensation claim on or about May 27, 2015. The employer controverted the claim and on appeal maintained that the claimant failed to provide timely written notice in accordance with Workers’ Compensation Law Section 18. The claimant testified, through a Gujarati interpreter, that she hurt her leg at work on April 3, 2015 and that she reported the accident to her supervisor when her work day ended. The employer’s representative testified that the employer’s policy for reporting work related accidents was not followed, nor did the claimant’s supervisor report the incident.
The Board found, among other things, that the employer was notified by the claimant of her work injury. The Board excused written notice here because the evidence showed that the claimant had, in fact, reported her work injury to her supervisor and the employer had not suffered any prejudice by the lack of written notice. The Board credited the claimant’s testimony, noted her language barrier as well as the lack of contradictory evidence from the employer.
Notice is all important in Workers’ Compensation. It may make all the difference between having a claim or not. Please feel free to contact with any questions you may have regarding your Workers’ Compensation claim or workplace accident.
Written by Yola Ghaleb, Esq.
Source: Matter of Kinkhabwala v ADP Totalsource Fl XIX Inc., 2017 NY Slip Op 09212 (N.Y. App.Div., Decided December 28, 2017)