Do You Know the Rule? N.Y. Notice of Injury Provision

New York, NY (WorkersCompensation.com) -- An employee who is injured at work must tell his employer about the accident in a timely manner if he hopes to obtain worker’s compensation benefits. If he doesn’t, the employer may be able to use lack of notice as a defense to the claim—but not always.

Timing of Notice

In New York, lack of timely notice does not automatically stop an employee’s claim in its tracks. Under Workers' Compensation Law § 18, the employee must provide notice to the employer within 30 days after the accident that caused the employee’s injury or death.

Notice where the Employee Died

The requirement that an employee give notice of his own death seems unfair at best and potentially impracticable. However, the provision does not mean that the employee’s ghost must take action even from the afterlife. Instead, under § 18, “Such notice may be given by any person claiming to be entitled to compensation, or by someone in his behalf.” Thus, for example, a dependent of the employee who believes he is entitled to benefits can give the notice.

Lack of Notice as a Defense to a Claim

Failure to provide timely written notice of an accident to an employer generally bars the claim unless the worker’s compensation board excuses that failure on the ground that:

• Notice could not be given;
• The employer or its agent had knowledge of the accident; or 
• The employer was not prejudiced by the lack of notice

See Galdon v. Robert Basil, Inc., No. 534917 (N.Y. Sup. Ct. App. Div. 02/09/23) (holding that while an auto mechanic did not provide timely notice, the claim was not barred because he verbally informed the assistant manager of the accidental injury either the day of the accident or shortly thereafter).

Contents of Notice

There are specific rules concerning the provision of notice that apply to employees in New York. The notice must:

• Be in writing;
• Contain the employee’s name and address;
• State in ordinary language the time, place, nature, and cause of the injury; and 
• Be signed by him or by a person on his behalf or, in case of death, by any one or more of his dependents, or by a person, on his behalf

Waiver of Notice

Employers cannot use lack of timely notice as a defense if they don’t assert that defense before the worker’s compensation board at the first hearing concerning the employee’s claim. Failure to raise the defense amounts to a waiver of the defense.

For compliance information from around the U.S., head to WorkCompResearch

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