Opinion
December 18, 1975
Appeals from decisions of the Workmen's Compensation Board, filed October 26, 1973 and January 3, 1975. The only issue to be resolved upon this appeal is whether the board properly excused the failure of the claimant to give written notice to his employer of the nature and extent of his injury (Workmen's Compensation Law, § 18). Claimant sustained a heart attack causally related to his work on November 30, 1971 which required hospitalization. He thereafter returned to work and suffered a recurrence on April 13, 1972 requiring further hospitalization. Original claims for compensation were not filed until August 11, 1972. The board has excused the absence of written notice on the basis that upon this record the claimant has established lack of any prejudice to the employer from failure to comply strictly with the statutory provisions (Matter of Giel v S. Kenny Trucking Corp., 38 A.D.2d 1001). We agree. On both occasions claimant's wife, on his behalf, notified the employer of claimant's hospitalization resulting from heart attacks. Evidence presented by a vice-president of the employer established knowledge of claimant's on the job injury and the testimony of one of the owners who observed claimant at his place of employment at the very time of the original incident completes this proof. There was ample opportunity for the employer to make any necessary inquiry after timely knowledge of claimant's hospitalization. The finding of lack of prejudice to the employer is based upon substantial evidence (Matter of Scaccia v Cypress Mines Corp., 45 A.D.2d 789). Decisions affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Kane, Koreman, Main and Reynolds, JJ., concur.