The carrier controverted the claim, asserting, among other things, that Mr. Horvath had failed to provide timely notice of the injury pursuant to New York Workers' Compensation Law § 18.

A workers' compensation law judge found that Mr. Horvath had not provided timely notice and disallowed the claim.

After the workers' compensation board affirmed, Mr. Horvath went to court.

The Court's Decision

The court affirmed.

In its decision, the court explained that Workers' Compensation Law § 18 required that a claimant seeking workers' compensation benefits had to provide written notice of an injury within 30 days after the accident causing such injury. Moreover, the court continued, the failure to give timely written notice generally precluded a claim unless the board excused the failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer did not suffer any prejudice.

The court then pointed out that where, as in this case, the claimant was an officer of the employer, the requisite notice had to be given to the employer's workers' compensation carrier.

The court added that a claimant had the burden of establishing an excusable ground for failing to give timely notice – and that even where one of the grounds for excusing a failure to provide notice was established, the board did not have to excuse the claimant's failure to provide timely notice; rather, it was a matter committed to the board's discretion.

Here, the court observed, Mr. Horvath failed to apprise the carrier of his injuries until nearly two years after the accident had occurred. Therefore, the court ruled, he had not provided timely notice under Workers' Compensation Law § 18.

With respect to the issue of prejudice, the court found that the carrier did not learn of Mr. Horvath's accident and the resulting injuries "until long after" he underwent a surgical repair of his right shoulder.

The court added that this "significant delay" prevented the carrier from promptly investigating the claim and deprived it of the opportunity to have Mr. Horvath undergo an independent medical examination prior to surgery.

The court pointed out that the carrier did not have any opportunity to, among other things, assess the extent of Mr. Horvath's injuries, the propriety of the treatment rendered, or the need for surgery prior to the time that he actually underwent a surgical repair of his right shoulder.

Accordingly, the court concluded that the board's finding that the carrier was prejudiced by the significant delay in notification was supported by substantial evidence in the record.

The case is Matter of Horvath v. Mega Forklift, No. 527430 (N.Y. App. Div. 3d Dep't Oct. 3, 2019). Attorneys involved include: Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel), for appellant. Jones Jones LLC, New York City (David S. Secemski of counsel), for Mega Forklift and another, respondents.