Sheikh v. White & Blue Grp. Corp.

• Decision Date: 10 January 2019
• Docket Number: 524580
• Parties: In the Matter of the Claim of Akhtar Ali SHEIKH, Appellant, v. WHITE & BLUE GROUP CORPORATION et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 1196

90 N.Y.S.3d 704

In the Matter of the Claim of Akhtar Ali SHEIKH, Appellant,

v. WHITE & BLUE GROUP CORPORATION et al., Respondents.Workers' Compensation Board, Respondent.

524580

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

Calendar Date: December 13, 2018

Decided and Entered: January 10, 2019

Akhtar Ali Sheikh, Elmhurst, appellant pro se.

Weiss, Wexler & Wornow PC, New York City (J. Evan Perigoe of counsel), for White & Blue Group Corporation and another, respondents.

Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

On July 29, 2014, claimant, a taxi driver, filed a C–3 claim form with the Workers' Compensation Board alleging that, while working for the employer on July 5, 2014, he was "assaulted by another driver," resulting in injuries to his right shoulder and neck. The employer and its workers' compensation carrier controverted the claim, raising, among other issues, lack of notice. Following a hearing at which claimant and one of the employer's supervisors testified, a Workers' Compensation Law Judge (hereinafter WCLJ) disallowed the claim, finding that the employer was prejudiced by claimant's failure to provide timely notice to it within 30 days as required by Workers' Compensation Law § 18 and that claimant's account of the alleged incident was not credible. Upon review, the Workers' Compensation Board, with one panel member dissenting, affirmed. Upon its mandatory review (see Workers' Compensation Law § 23 ), the full Board upheld the decision, finding no reason to disturb the WCLJ's credibility determinations. This appeal by claimant ensued.

We affirm. " Workers' Compensation Law § 18 requires that a claimant seeking workers' compensation benefits must provide written notice of an injury within 30 days after the accident causing such injury. The failure to give timely written notice generally precludes a claim unless the Board excuses 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" ( Matter of Taylor v. Little Angels Head Start , 164 A.D.3d 1512, 1512–1513, 82 N.Y.S.3d 275 [2018] [internal quotation marks and citations omitted]; see Matter of Johnson v. T.L. Cannon Mgt. , 145 A.D.3d 1202, 1203, 44 N.Y.S.3d 555 [2016] ). Even if one of the foregoing grounds is proven, the Board is not required to excuse a claimant's failure to provide timely notice as, in the end, "the matter rests within the Board's discretion" ( Matter of Bennett v. Putnam N. Westchester BOCES , 123 A.D.3d 1397, 1398, 1 N.Y.S.3d 406 [2014] [internal quotation marks and citation omitted]; accord Matter of Taylor v. Little Angels Head Start, 164 A.D.3d at 1513, 82 N.Y.S.3d 275 ).

Claimant testified that he leased a taxicab from the employer on July 5, 2014 and, while initially driving in Manhattan, he drove to LaGuardia Airport, arriving around 8:00 p.m., because he could not get fares in Manhattan. He drove into the parking lot to await passengers, called the dispatcher trying to "wake him up" and, when the dispatcher came out, he approached claimant's taxicab and grabbed his neck, hit him and knocked him against a wall, injuring him. Claimant called 911 and, when the Port Authority police arrived, they reportedly refused to arrest the dispatcher because he was a "city employee" and they threatened to arrest claimant. According to claimant, although in "severe pain," he worked until 5:30 a.m. the next morning, finishing his shift, because he had to cover the cost of the leased taxicab, but he was unable to work thereafter. He took ibuprofen

but did not go to the emergency room because he did not know if it would be covered by his health insurance or workers' compensation. While he testified that he went to the doctor "[w]ithin a couple of days," it was established that he first saw a doctor on July 22, 2014, which he claimed was the first available appointment. Claimant conceded at the hearing that he did not provide the required timely written notice because he was "unable to go to the garage." He testified that he provided verbal notice on an unspecified date to the manager and dispatcher, and a supervisor testified that claimant provided verbal notice about a month after the alleged incident. There is no support in the record for claimant's assertion on appeal that he provided verbal notice to the employer "immediately" after the alleged incident. Although claimant filed a motor vehicle accident report over a month later, on August 12, 2014, there is no police report or prompt medical records and no witnesses were produced.

Given the lack of any contemporaneous documentation or proof to support claimant's allegation that he was assaulted and the employer's resulting inability to properly investigate the incident, the Board providently concluded that claimant failed to demonstrate that the employer was not prejudiced by the untimely notice (see Workers' Compensation Law § 18 ; Matter of Taylor v. Little Angels Head Start , 164 A.D.3d at 1513, 82 N.Y.S.3d 275 ). As such, we cannot conclude that the Board abused its discretion in declining to excuse claimant's untimely notice.

Moreover, we accord great deference to the Board's determination to discredit claimant's testimony (see Matter of Burke v. New York City Tr. Auth. , 148 A.D.3d 1498, 1500, 50 N.Y.S.3d 625 [2017] ; Matter of Johnson v. T.L. Cannon Mgt. , 145 A.D.3d at 1203, 44 N.Y.S.3d 555 ). Among the evidence undermining claimant's credibility, he...