James Wisser v. New Balance Athletic Shoe, Inc.
January 20, 2022
CategoriesBoard IME Notice Board IME Notice
mistake of fact
Summary from the Troubh Heisler Attorneys
James Wisser v. New Balance (attached) - Wisser had peripheral neuropathy in his feet, aggravated by his standing at work. He went out of work on 2/23/18 but did not give notice to New Balance of a work injury until he filed his petitions on 9/4/18. New Balance raised the 30-day notice defense, and Wisser claimed mistake of fact. Judge Chabot granted his petitions, finding that Wisser first knew he had a work injury when he filed his petitions, so notice was timely. Based on the §312 IME, Judge Chabot also found that Wisser had a partial work capacity. Although New Balance had submitted a labor market survey, and Wisser did not do a work search, Judge Chabot ordered partial benefits based on an imputed earning capacity less than the LMS showed.
Both parties appealed, and the Appellate Division vacated only the finding of timely notice. The panel held that, while the petition tolled the 30-day notice period, they could not determine when it started, as Wisser did not testify about first knew he had a work injury. The panel remanded the case back to Judge Chabot to find that date. Wisser cross-appealed on the issue of work capacity, but the panel upheld Judge Chabot’s adoption of the §312 IME over his treating physician’s opinion that he was totally disabled.