IN RE: the Claim of Meggan COTTERELL (2022)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed August 21, 2020, which ruled that claimant's right hip claim was not barred by Workers’ Compensation Law § 28 and granted claimant's request to amend her workers’ compensation claim.

Claimant, a resident assistant, was injured at work on September 13, 2015 while making beds and filed a workers’ compensation claim in October 2015 for work-related injuries to her lower back, which was later established.  In 2018, a Workers’ Compensation Law Judge (hereinafter WCLJ) found that claimant had raised the issue of a causally-related right hip injury and, later, ruled that she had submitted prima facie medical evidence of such an injury through the submission of reports from her treating orthopedist, Matthew Stein.  Stein submitted reports and later testified that, following initial treatments for her lower back injury for which she saw only 50% improvement and experienced continued pain, it was determined in part from an MRI that she had also sustained a right hip labral tear that was causally-related to her work injury.  The employer and its workers’ compensation carrier (hereinafter collectively referred to as the carrier) procured an independent medical examination from a consulting orthopedist who concluded that her hip pain was not the result of a labral tear but, rather, was the product of a preexisting condition and was not causally-related to her 2015 work injury.  The carrier objected to claimant's request to amend her claim as untimely under Workers’ Compensation Law § 28.  Following a hearing at which Stein and the carrier's consultant orthopedist testified consistent with their prior medical reports, the WCLJ credited Stein's testimony and amended the claim to include a causally-related right hip injury.  On the carrier's appeal, the Workers’ Compensation Board affirmed.  The carrier appeals.

We affirm.  Workers’ Compensation Law § 28 provides, in relevant part, that “[t]he right to claim compensation ․ shall be barred ․ unless within two years after the accident ․ a claim for compensation shall be filed” with the Board (see Matter of Jones v. Servisair LLC, 180 A.D.3d 1313, 1314, 118 N.Y.S.3d 319 [3d Dept. 2020]).  However, the failure to file a C–3 employee claim form is not dispositive, as other documents filed within the two-year window, including medical reports and the employer's report of injury, have been considered in determining whether a claim is timely filed and found to mark the filing of a claim, where the documents “were sufficient to provide [the Board] with the facts of the injury from which it might be reasonably inferred that a claim for compensation was being made” (id. at 1315, 118 N.Y.S.3d 319 [internal quotation marks, ellipsis and citation omitted];  see Matter of Hernandez v. Guardian Purch. Corp., 50 A.D.3d 1258, 1259, 855 N.Y.S.2d 704 [3d Dept. 2008];  Matter of Schley v. North State Supply, 309 A.D.2d 1092, 1092–1093, 766 N.Y.S.2d 227 [3d Dept. 2003];  Matter of McCutcheon v. Public Serv. Dept., 290 A.D.2d 679, 680, 735 N.Y.S.2d 658 [3d Dept. 2002];  Matter of Boone v. Rigaud, 176 A.D.2d 378, 379, 574 N.Y.S.2d 86 [3d Dept. 1991]).  Accordingly, “ ‘any notice which conveys to the Board that the claimant is claiming the compensation and benefits of the Workers’ Compensation Law is sufficient’ ” (Matter of McCutcheon v. Public Serv. Dept., 290 A.D.2d at 680, 735 N.Y.S.2d 658 [brackets and emphasis omitted], quoting Matter of Kaplan v. Kaplan Knitting Mills, Inc., 248 N.Y. 10, 13, 161 N.E. 204 [1928]).  Ultimately, “whether a claim has been filed in a timely manner presents a factual issue for the Board to resolve, and such determination, if supported by substantial evidence in the record as a whole, will not be disturbed” (Matter of Searchfield v. Lowe's Home Ctrs., Inc., 92 A.D.3d 1038, 1039, 937 N.Y.S.2d 731 [3d Dept. 2012] [internal quotation marks, brackets and citation omitted];  accord Matter of Jones v. Servisair LLC, 180 A.D.3d at 1315, 118 N.Y.S.3d 319).

The record reflects that numerous medical reports filed shortly after her work-related accident and through the next two years, including an MRI report in October 2015, establish that claimant had bilateral hip pain or back pain radiating into her hips.  Claimant testified that she complained of hip pain throughout that period and her treating physician diagnosed her with causally-related right hip injury in June 2017.  Stein, who the Board credited, testified that, although claimant was initially treated for low back pain, after some improvement but persistent pain, the right hip labral tear was diagnosed and he performed surgery on her in June 2018, which resolved much of her pain.  Stein explained that both the low back injury and the right hip labral tear contributed to claimant's pain, both were causally-related and it is not uncommon for labral tear symptoms to be confused with low back symptoms (see Matter of Searchfield v. Lowe's Home Ctrs., Inc., 92 A.D.3d at 1039, 937 N.Y.S.2d 731).  Since claimant could not have filed a claim for causally-related hip injuries until this condition was properly identified and diagnosed, we are persuaded that this matter is not time-barred.  Given that substantial record evidence supports the Board's determination that the amendment to the claim is not time-barred, it will not be disturbed.  The carrier's remaining contentions similarly lack merit.

ORDERED that the decision is affirmed, with costs to claimant.

Reynolds Fitzgerald, J.

Clark, J.P., Aarons, Pritzker and Ceresia, JJ., concur.