State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 521038 

________________________________

In the Matter of GREGORY 

McNICHOLS, 

Respondent, 

v

NEW YORK CITY DEPARTMENT OF MEMORANDUM AND ORDER

CORRECTIONS, 

Appellant.

WORKERS' COMPENSATION BOARD, 

Respondent.

________________________________

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
-3- 521038 

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