Claim of Klausner v. S & T Delicatessen

37 A.D.2d 1012, 325 N.Y.S.2d 602, 1971 N.Y. App. Div. LEXIS 3093

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1971
• Status: Published

Opinion

Appeal from decisions of the Workmen’s Compensation Board, filed February 4, 1969, October 20, 1969 and September 14, 1970. The board found that claimant, a headwaiter, sustained an accidental injury arising out of and in the course of employment and awarded a 25% posthumous schedule loss of use of the right arm. The board further found that “ Since the claimant did receive the medical attention which the employer states that he would have supplied if he had prompt notice of the injury * * * the employer was not prejudiced by the failure of claimant to give timely notice in accordance with See. 18”. It therefore excused the failure to give prompt notice. The board here has made no finding as to whether the delay in being able to investigate the accident should be waived due to lack of prejudice and since the delay here did not prejudice the employer as a matter of law (cf. Matter of Zraunig v. New York Tel. Co., 32 A D 2d 686, a case involving an unwitnessed accident) the matter must be remitted to the board for further findings. Decisions reversed, and matter remitted for further proceedings not inconsistent herewith, with costs to appellants against the Workmen’s Compensation Board. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.