Decided: April 21, 2021
Topic: Notice, Mistake of Fact
The issue, in this case, was whether it was appropriate, in the absence of any testimony or other evidence on the issue, for the ALJ to infer that the employee operated under a mistake of fact as to the cause of his bilateral knee condition until he obtained a medical causation opinion.
The employee worked long-term for Shaw’s Supermarkets as a grocery manager. His job often involved stocking shelves, which required frequent bending and kneeling. Over a period of several years, he experienced pain in both knees that worsened progressively. On August 22, 2017, the employee saw his primary care physician.
Around this time, the employee began to question whether his work caused his knee condition. The primary care physician did not issue a causation opinion until December 1, 2017. In the meantime, the employee saw Shaw’s chosen medical provider on November 3, 2017. They determined his bilateral knee condition as work-related. Shaw’s was notified that same day.
Shaw’s alleged that the employee’s claim should be denied. He failed to provide notice within the 30-day period required by statute. Once an employer raises the issue of notice, the employee bears the burden of persuasion to show that notice was timely.
Despite no testimony from the employee that he was under a mistake of fact regarding the cause and nature of his bilateral knee pain, the ALJ (Goodnough) found that the employee was under a mistake of fact until he was given a medical opinion regarding the compensable nature of his knee condition on November 3, 2017. As a result, the ALJ concluded that the notice was timely.
Shaw’s appealed arguing that the ALJ erred by tolling the notice period for the mistake of fact. The employee provided no evidence that he operated under a mistake of fact as to the cause of his condition. He argued that the absence of a medical causation opinion until November 3, 2017, supported the ALJ’s factual finding.
The employee was under a mistake of fact or that knowledge of the work-relatedness of the injury should not have been imputed to him because of the differing medical causation opinions. The Appellate Division vacated the decision and ordered the employee’s petitions denied on remand based on late notice.
They found that the record did not contain competent evidence to support the ALJ’s finding of mistake of fact. They further noted that the absence of a medical opinion on causation, by itself, does not permit an inference that the employee was mistaken as to the cause and nature of his knee condition.
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