Is there a notice defense in New York?

New York employers must provide statutory benefits to employees who have an accident and sustain an injury, which arises out of and in the course of employment. The employee must provide notice to the employer within 30 days after the accident. WCL § 18. Timely notice gives the employer the ability to fully investigate the circumstances of the accident when information is available and witnesses can recall the event. Failure to give proper notice may prejudice the rights of the employer to the extent that it may be found to be relieved of its obligation to provide benefits under the law.

What constitutes Employer Prejudice?

Notice must come within 30 days – but the claimant can report it later – and get benefits – if the employer is not prejudiced by this late reporting. Whether or not late reporting prejudices the employer is a fact question for the Board.

New Case on employer prejudice.

In a new case decided December 15, 2011, the Appellate Division reviewed the denial of a claim based on the failure of the claimant to provide timely notice to the employer. In Dudas v. Town of Lancaster, the claimant allegedly injured his ankle in a slip on ice while working at Town Hall on February 28, 2007. The employee continued to work and did not seek medical treatment until 10 days later. The claimant reported the injury as work-related on June 27, 2007. The employer filed denial pleadings raising "notice" as a defense (see my "best practices" recommendations for filing denial pleadings). The employer also obtained the original emergency room intake records, in which the claimant was recorded as stating he was injured when he "fell off a porch" - a story at odds with his "slip on ice at Town Hall" claim.

Here, the Board disallowed the claim and the Appellate Division upheld that denial, as the claimant's failure to report the injury within the time period required by law (30 days) prejudiced the employer's ability to investigate the underlying accident.
Case: Dudas v. Town of Lacaster, 2011 Slip Op. 09050 (N.Y. App. Div., Decided December 15, 2011).

How is jurisdiction established under the LHWCA?

The Longshore and Harbors Workers’ Compensation Act ("LHWCA") covers longshore/harbor workers and other "maritime" workers. The Act has also been applied to certain other workers under the Defense Base Act. (See my overview of the LHWCA).

“Status” and “situs.”

The LHWCA set forth the requirements for coverage. "Status" refers to the nature of the work performed; "situs" refers to the place of performance.

Status.

The employee claiming benefits under the LHWCA must be engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, including any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. There are specific exclusion which apply to status.

Situs.

The jurisdictional trigger for a claim under the LHWCA is an injury upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). Jurisdictional questions based on issues of situs are fact-sensitive.

In a new case, decided last month, the employer argued that the claimant did not satisfy either the status or situs prerequisites of the LHWCA. The Benefits Review Board ruled that the claimant did satisfy the status requirement, because he was maintaining and repairing loading equipment used in Longshoring activity.

However, the claimant worked in a garage, more than 400 feet from any navigable water (the Monongahela River). The employer argued that the claimant did not meet the 'situs' test.

Taking a liberal view, the Circuit Court adopted a broad reading of "other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel," requirement of the Act. In defining "adjoining area," the court held that "[s]o long as the site is close to or in the vicinity of navigable waters, or in a neighboring area, an employee's injury can come within the [Act]. To require absolute contiguity . . . would frustrate the congressional objectives of providing uniform benefits and covering land-based maritime activity." The Board ruled that the garage where claimant was injured was a covered situs, and awarded benefits.

Case: Consolidation Coal Co. v. BRB, et al. [Smith], __ F.3d __, 2010 WL 5176847 (3d Cir. 2010).

Have any questions about this article? Contact Greg Lois.

Claimant Gerard McGlinsey worked from 1974 to 2001 as a press operator in Pennsylvania. In 1999 he complained to his employer about physical problems he was having, related to the job. The employer told him to file a workers' compensation claim (in Pennsylvania) and pursue treatment. The claimant didn't file anything and kept working as a pressman.
The claimant then worked from 2001-2002 as a pressman in New Jersey, essentially performing the same job. Following this employment, the claimant brought an occupational claim for workers' compensation benefits in New Jersey. The employer filed a motion to dismiss based on a lack of subject matter jurisdiction - stating that the claim should have been brought in Pennsylvania (the claimant called this motion a 'stealth' motion for summary judgment).
During the trial it was established that most of the claimant's work experience was in Pennsylvania, and that only 5% of his work life occurred in New Jersey.
Which state has jurisdiction, Pennsylvania or New Jersey?
The New Jersey Appellate Division just affirmed the decision of New Jersey Workers' Compensation Judge Jose LaBoy. Read More...

Suzanne Huntoon began working as a clerk-typist for a police department in 1994. In 1998 she began experiencing tingling and numbness in her right hand. In July of 1998 her primary care physician told her that the condition was "probably work related because of the typing her job required."

In 2001 Huntoon saw a new family doctor, still complaining of pain and numbness in her right hand. The new doctor diagnosed her as suffering from "right carpal tunnel syndrome" and prescribed a wrist brace.

In 2003 Hunoon returned to her doctor, complaining about pain an dumbness in the right hand that would not go away. Once again, she was diagnosed with "carpal tunnel syndrome right keyboard use." Huntoon was referred to a hand surgeon, although she did not make an appointment or follow up on the referral.

On two more occasions Huntoon sought care for her right wrist - again in 2003 and in 2004. She underwent an EMG/Nerve Conduction Velocity test which confirmed a 'severe degree' of carpal tunnel syndrome in the right hand.

In 2007 Huntoon filed a claim petition alleging that she sustained injuries arising from an occupational exposure ("repetitive motion"). The employer filed an answering pleading denying the compensability of the hand injuries.

Trial began in March 2009. During her testimony, the claimant recounted her treatment course (essentially as described above). After trial, the judge of compensation dismissed Huntoon's case - citing the law that requires an employee to file claims for work-related injuries within two years of learning of the condition's relationship to employment. This 'two year' time limit for filing claims is referred to as the 'Statute of Limitations.'

N.J.S.A. 34:15-34 requires that “where a claimant knew the nature of the disability and its relation to the employment” all claims for compensation for compensable occupational disease must be filed within two years after that date.

When an employee suffers and accident but neglects to file a claim petition within the two years, his claim is barred by the statute of limitations.

In the Huntoon case, the judge of compensation found that at the very latest, the claimant knew she had work-related carpal tunnel in 2004, when she underwent testing (EMG/NCS) for the condition.

The claimant appealed the dismissal ruling. On July 28, 2010 the reviewing court (New Jersey Appellate Court) affirmed the dismissal.

This is a great case for the defense! The Appellate Judges rejected the petitioner's argument that the Statute of Limitations did not start running until the date of her last exposure.

The Huntoon case demonstrates the value of a thorough investigation into the prior medical history of the claimant. By obtaining the claimant's lengthy prior medical history, which included the nine-year-old diagnoses of carpal tunnel, the employer was able to show the court that the claimant was well-aware of her allegedly-occupational condition long before she claimed it was work related.

Case: Huntoon v. Borough of Clementon, A-956-09T3 (App. Div. decided July 28, 2010).

In the recently decided cases Rosa Maria Borbon v. Fantasia Industries, the plaintiff alleged a personal injure cause of action against her employer and the landlord. Plaintiff Borbon alleged that the parking lot was 'negligently maintained' which led to her slip-and-fall type accident.

In a case of importance for all employers, were her injuries found compensable, and thus, did the employer have the benefit of the 'workers' compensation bar'? Read More...

Claimant Gerald Catalano was injured at work delivering packages for UPS in Staten Island, New York. But he filed a claim for workers' compensation benefits in New Jersey, telling the Judge that "it would be to his benefit to seek compensation under New Jersey's jurisdiction rather than New York as he would be entitled to a permanent disability award and a higher weekly benefit." UPS asserted a defense of 'lack of jurisdiction' and moved to dismiss the claim petition.

How is jurisdiction established in New Jersey Workers’ Compensation Courts? The Courts look at the following factors:
1. Residence of the petitioner. This is simple: does the claimant reside in New Jersey? Even if the injured worker was injured in another state, and the contract of hire stated that another state’s workers’ compensation law would be applied, a resident of New Jersey can claim New Jersey jurisdiction based upon residence. In Parks v. Johnson Motor Lines, 156 N.J. Super. 177 (App. Div. 1978), the appellate panel found that the New Jersey residence of an injured worker and the fact that a substantial part of his employment was carried out in New Jersey was sufficient for New Jersey jurisdiction even though the accident occurred in Pennsylvania and the contract of employment provided that North Carolina’s law would govern.
Residence alone, without the presence of the other factors, is not likely sufficient to create jurisdiction in New Jersey.

2. Respondent’s location. Is the respondent located in New Jersey? If not, the Court will consider ‘significant contacts’ with New Jersey, such as selling products here, soliciting business in New Jersey, or advertising in New Jersey.

3. Place of Hire. A contract of hire made in New Jersey, by itself, is not enough to create jurisdiction in New Jersey workers’ compensation courts.

4. Location of Accident. If the accident which injured the employee took place in New Jersey, while the petitioner was in the course and scope of her employment, then jurisdiction in New Jersey Workers’ Compensation Court is created.

5. Place where the contract of hire was made; and

6. Place where workers' compensation jurisdiction was established by agreement between the parties. Williams v. Port Authority, 175 N.J. 82, 87-88 (2003).

In Catalano the petitioner admitted that he lived in Staten Island, worked out of the Staten Island UPS terminal, and that he was delivering in Staten Island when the injuries occurred. However, the claimant argued that he was a member of a Teamster's local based in New Jersey and the name of the business unit he reported to was the 'Central Jersey Division.' The claimant also stated that he took his initial employment physical at UPS's Edison, New Jersey plant (ten years earlier) and drove as a 'probationary employee' for two weeks in New Jersey at the start of his employment (also ten years before the accident).

The Workers' Compensation Judge ruled that Catalano could not establish jurisdiction for his claim in New Jersey court. The ruling was found that the employment took place in New York, as did the residence of the claimant and the place of injury. The claimant’s minor contact within New Jersey were not enough to establish jurisdiction in NJ WC Court.

Case: Catalano v. UPS, N.J. App Div. 39-2-7061 (Decided March 9, 2010).

A new case (Continental Casualty Co. v. Ameritemp, Inc., 39-2-2843 App. Div) provides a good restatement of the basic formulation (the ‘six factors’ laid out above) used by the New Jersey courts in determining whether a claimant is considered a ‘New Jersey’ employee for the purposes of collecting benefits available under the New Jersey Workers’ Compensation Act.
Read More...