State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 30, 2016 521038
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In the Matter of GREGORY
McNICHOLS,
Respondent,
v
NEW YORK CITY DEPARTMENT OF MEMORANDUM AND ORDER
CORRECTIONS,
Appellant.
WORKERS' COMPENSATION BOARD,
Respondent.
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Calendar Date: June 2, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.
__________
Zachary W. Carter, Corporation Counsel, New York City (Edan
Burkett of counsel), for appellant.
Law Office of Joseph A. Romano, New York City (Joseph A.
Romano of counsel), for Gregory McNichols, respondent.
Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Workers' Compensation Board,
respondent.
__________
Devine, J.
Appeal from a decision of the Workers' Compensation Board,
filed July 30, 2014, which ruled, among other things, that
claimant was excused from providing timely notice of his accident
pursuant to Workers' Compensation Law § 18.
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Claimant, a correction officer, sustained injuries on
November 23, 2010 when he was assaulted by multiple inmates. His
ensuing application for workers' compensation benefits was
established for injuries to his back and left shoulder. Claimant
continued to receive medical treatment for pain and, in October
2012, requested authorization for cervical spine surgery. The
self-insured employer denied authorization on the ground that the
neck was not an established injury site. Claimant nevertheless
underwent surgery that month.
Thereafter, claimant sought to establish the neck condition
as an additional causally-related injury, prompting the employer
to object on the ground of lack of timely notice pursuant to
Workers' Compensation Law § 18. Following a hearing, the
Workers' Compensation Board, reversing a finding of a Workers'
Compensation Law Judge, found that the employer was not
prejudiced by the lack of notice and amended the claim to include
a neck injury. This appeal by the employer ensued.
We affirm. Workers' Compensation Law § 18 requires written
notice of an injury "within [30] days after the accident causing
such injury." "Failure to give the required notice may be
excused by the . . . Board based upon [claimant's showing] that
such notice could not, for some sufficient reason, be given, or
that the employer . . . had actual knowledge of the accident
. . . or, finally, that the employer was not prejudiced by the
delay" (Matter of Rote v Lexington Ctr., 2 AD3d 1085, 1085 [2003]
[internal quotation marks and citations omitted]; see Matter of
Lopadchak v R.W. Express LLC, 133 AD3d 1077, 1077 [2015]). "No
prejudice will be found to exist where the employer had actual
independent knowledge of the event or where the delay neither
aggravated the injury nor prevented the employer from properly
investigating the claim" (Matter of Miner v Cayuga Correctional
Facility, 14 AD3d 784, 785 [2005] [citation omitted]).
Here, it is undisputed that the employer had timely written
notice that claimant had sustained injuries during the assault
(see Matter of Logan v New York City Health & Hosp. Corp., 139
AD3d 1200, 1202-1203 [2016]). The Board credited claimant's
testimony that he had not sustained any subsequent accident or
injury to his neck and, moreover, noted that an independent
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medical examiner had examined claimant prior to the surgery and
issued a report reflecting claimant's complaints of causally
related neck pain. Substantial evidence thus supports the
Board's finding that there was no prejudice to the employer by
the late notice of the neck injury (see Matter of McCarthy v
Verizon Wireless, 83 AD3d 1352, 1353 [2011]; Matter of Hollenbeck
v Hollenbeck & Dailey, 2 AD3d 1068, 1068-1069 [2003]; Matter of
Knisell v Treasure Chest Adv. Co., 298 AD2d 820, 821 [2002];
Matter of Keegan v Kraft, Inc., 195 AD2d 775, 775 [1993]).
McCarthy, J.P., Garry, Lynch and Aarons, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court