Refuting Claims: Trial Proofs

New York Claimant Rufus Browne, a railroad track employee, was bending down to pick up a rail flag when he experienced weakness on the left side of his body. He went to the hospital the next day and was diagnosed as having had a stroke. Browne filed a workers compensation claim, alleging that his stroke ‘arose out of and in the course of’ his work.
The employer denied the causal relationship of the stroke tot he work. A hearing was held (but no testimony was produced) and the Workers’ Compensation Law Judge determined there was ‘no prima facie medical evidence of causal relationship between the stroke and the employment’ and the claim was NFA’d (designated for ‘No Further Action.’)
The claimant appealed to the Workers’ Compensation Board (WCB), who affirmed the denial. The claimant appealed the WCB’s denial to the Appellate Division.
The Appellate panel found that the employer “never refuted the allegation that the onset of the claimant’s symptoms occurred while he was at work” and that therefore the claimant was entitled to the statutory presumption that the stroke arose out of the employment (WCL Sect. 27). The Appellate panel found that the WCB erred by requiring the claimant to establish his case before the employer refuted it: in essence, the panel found that the employer “must . . . .be afforded the opportunity to rebut the presumption [of compensability].”
Practice tip- in this case, the fact pattern must have been very clear to the employer and the WCLJ: the stroke didn’t happen at work, and the medical records probably bore that out. However, even where the employee fails to establish the ‘seemingly’ bare minimum proofs to establish his claim, the employer must be prepared to present the employer’s proofs – to make a record that will withstand appeal.
Case: Browne v. New York City Transit Auth., ___ N.Y.S. 2d ___ (N.Y. App. Div. 3rd Dep’t, Decided October 29, 2009).

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com