Galdon v. Robert Basil Inc.

213 A.D.3d 1063

183 N.Y.S.3d 607

In the Matter of the Claim of John GALDON, Claimant,

v.ROBERT BASIL INC. et al., Appellants.

Workers’ Compensation Board, Respondent.

534917

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 9, 2023

Decided and Entered: February 9, 2023

Hamberger & Weiss LLP, Buffalo (John A. Terzulli of counsel), for appellants.

Letitia James, Attorney General, New York City (Donya Fernandez of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from a decision of the Workers’ Compensation Board, filed August 25, 2021, which ruled, among other things, that claimant sustained a compensable injury and awarded workers’ compensation benefits.

Claimant, an autobody technician, filed a claim for workers’ compensation benefits alleging that he sustained a work-related injury to his back on February 29, 2020. The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) controverted the claim, arguing, among other things, that claimant failed to provide timely notice of the accident. Following a hearing, a Workers’ Compensation Law Judge found that there was sufficient credible evidence to establish accident, notice and causal relationship with regards to claimant's injury and awarded workers’ compensation benefits. Upon review, the Workers’ Compensation Board affirmed, and the carrier appeals.

Initially, the carrier contends that claimant's failure to give timely written notice of his injury bars his claim for benefits. "Failure to provide timely written notice of an accident to an employer pursuant to Workers’ Compensation Law § 18 generally bars the 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" ( Matter of Lopadchak v. R.W. Express LLC, 133 A.D.3d 1077, 1077, 20 N.Y.S.3d 675 [3d Dept. 2015] [internal quotation marks and citations omitted]; see Matter of Colamaio–Kohl v. Task Essential Corp., 157 A.D.3d 1103, 1105, 69 N.Y.S.3d 171 [3d Dept. 2018] ). It is undisputed that claimant did not provide timely written notice to the employer. Claimant testified, however, that he verbally informed the assistant manager of the accidental injury either the day of the accident or on March 2, 2020, his next scheduled work day. Although the assistant manager testified that she was not informed of claimant's injury until June 2020, the Board credited claimant's testimony and, "inasmuch as resolution of the sufficiency of a claimant's oral notice is a matter within the exclusive province of the Board, substantial evidence supports a finding that claimant provided adequate notice of the accident" ( Matter of Pilacik v. JACSA, LLC, 161 A.D.3d 1463, 1464, 76 N.Y.S.3d 672 [3d Dept. 2018] [internal quotation marks and citations omitted]; see Matter of Rankin v. Half Hollow Hills Cent. Sch. Dist., 105 A.D.3d 1242, 1242–1243, 964 N.Y.S.2d 684 [3d Dept. 2013] ).

Regarding the establishment of the claim, "whether a compensable accident has occurred is a question of fact to be resolved by the Board and its determination will not be disturbed when supported by substantial evidence" ( Matter of Minichino v. Amazon.com DEDC LLC, 204 A.D.3d 1289, 1291, 167 N.Y.S.3d 594 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]; see Matter of Gaspard v. Queens Party Hall Inc., 189 A.D.3d 1880, 1880, 138 N.Y.S.3d 224 [3d Dept. 2020], lv denied 36 N.Y.3d 912, 2021 WL 1742207 [2021] ). "[A]n injury is compensable only where it ‘arises out of and in the course of the employment’ " ( Matter of Scriven v. Davis Ulmer Sprinkler Co., 183 A.D.3d 1098, 1099, 123 N.Y.S.3d 283 [3d Dept. 2020] [brackets omitted], quoting Workers’ Compensation Law § 10[1] ; accord Matter of Gaspard v. Queens Party Hall Inc., 189 A.D.3d at 1881, 138 N.Y.S.3d 224 ).

Claimant testified that he was at work lifting tires onto a board in order to paint the rims when he felt a pain in his lower back that went down to his left leg. According to claimant, he left work shortly thereafter that day and...