Alley v. UPS

Insurance Company

Liberty Mutual Insurance

Date Decided

October 28, 2014

Panel Members

Glen Goodnough

Sue Jerome

Mike Stovall




Pre-Existing Back Notice Mistake of Fact Scope of Appellate Review

File Size

236 KB


Summary from the Troubh Heisler Attorneys

The employee told his doctor about a gradual work aggravation of his pre-existing back condition, but he failed to tell UPS. H.O. Elwin found that the employee was not operating under a mistake of fact tolling the 90-day notice period, and that he therefore failed to give timely notice, barring his claim on that injury. The Appellate Division affirmed, citing its limited power of review: it can only ensure that:

(1) the factual findings are supported by competent evidence,

(2) the decision involves no misconception of applicable law, and

(3) that the hearing officer’s application of the law to the facts was neither arbitrary nor without rational foundation.

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