“Substantial” Evidence, Not Just “Some” Evidence Required to Rebut NY Presumption Regarding Unwitnessed Injuries

As is the rule in many jurisdictions [see Larson’s Workers’ Compensation Law, § 7.04], New York provides a presumption of compensability for accidents occurring during the course of employment which are unwitnessed or unexplained. In a decision handed down yesterday [Matter of Docking v. Lapp Insulators LLC, 2020 N.Y. App. Div. LEXIS 210 (Jan. 9, 2020)], a state appellate court reminded the employer that in order to rebut the presumption, it is the employer’s burden “to provide substantial evidence to the contrary” [emphasis added]. Evidence, even expert medical opinion, that amounts to mere speculation is insufficient.

Background

Claimant, a hazmat driver, sustained an unwitnessed fall while at work that caused a traumatic brain injury. At the time of the incident, claimant was outside a stockroom loading a cart with boxes, shortly after which he was found by his coworkers on the floor, bleeding from a laceration on his head. According to claimant, he woke up in the hospital, where he remained for approximately two months, and did not have any memory of falling at work and injuring his head.

He subsequently filed a claim for workers’ compensation benefits, which was controverted by the employer and its carrier. Following a hearing, a WCLJ found that the N.Y. Workers’ Comp. Law § 21 presumption applied, that the employer failed to rebut that presumption and, therefore, that claimant sustained a work-related injury and was entitled to benefits. The Board affirmed, finding that the employer failed to produce substantial evidence to rebut the § 21 presumption and, therefore, claimant’s injury arose out of and in the course of his employment. The employer appealed.

Employer’s Rebuttal Evidence

Initially, the appellate court noted that there was no dispute that the § 21 presumption should apply. The employer argued, however, that the presumption was rebutted by its proof that claimant’s injury resulted not from an accident associated with his job duties but, rather, from his preexisting cardiovascular condition. In support of its position, the employer presented the medical reports of Louis Medved, a neurologist who performed an independent medical examination of claimant in December 2017 and reviewed claimant’s medical records. Medved reported that claimant had a past medical history significant for atrial fibrillation for which claimant had undergone cardioversion. Although Medved attributed claimant’s loss of consciousness and resulting brain injury to his underlying cardiac condition, Medved acknowledged that when claimant was evaluated at the hospital following the incident, he was in normal “sinus rhythm.”

ER Physician’s Opinion

Consistent with Medved’s observation regarding claimant’s normal sinus rhythm, Sara Connolly, a physician specializing in emergency medicine who presided over the emergency room when claimant was brought to the hospital and who diagnosed claimant with an intracranial hemorrhage, indicated that claimant’s heartbeat and pulse were normal with regular rhythm and no murmurs. Connolly also noted that claimant’s hematology and EKG test results were normal with no signs of heart damage and that, at the time he was evaluated in the emergency room, claimant was in sinus rhythm and not in atrial fibrillation. Connolly further opined that claimant’s injuries were consistent with the type of fall that claimant experienced.

Appellate Court Reasoning

The appellate court observed that the Board ultimately found Connolly more credible than Medved and concluded that Medved’s testimony was unduly speculative and therefore insufficient to rebut the presumption under N.Y. Workers’ Comp. Law § 21. Given the record and the deference afforded to the Board’s credibility determinations, the appellate court would not disturb the Board’s findings.

Comment

As shown here, the employer’s presentation of “some” evidence was insufficient to rebut the presumption. New York requires “substantial” evidence in this sort of instance. As discussed in Larson, § 7.04[1][c], pointing to the possibility of a preexisting, idiopathic condition is not enough. With the presumption intact, the injured employee’s claim was compensable.