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SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING WORK-RELATED DUTIES (THIRD DEPT).

The Third Department determined the deceased worker’s (claimant’s husband’s) statement to his wife indicating he fell from a ladder while doing his work on a subway car, coupled with a supervisor’s testimony decedent left work early holding his stomach, constituted substantial evidence supporting the claim for death benefits. Although the accident was not witnessed, and no report of the incident was made, the statutory presumption that the accident was work-related was not applicable:

Workers’ Compensation Law § 21 (1) provides a statutory presumption that “an unwitnessed accident which occurred ‘within the time and place limits’ of employment arose out of that employment” … . This presumption, however, “cannot be used to establish that an accident occurred” …  and “does not wholly relieve [a claimant] of the burden of demonstrating that the accident occurred in the course of, and arose out of, [his or] her employment” … . Significantly, whether a claimant’s injury resulted from an accident that arose out of and in the course of his or her employment is a factual issue for the Board to resolve, and its determination in this regard will not be disturbed if supported by substantial evidence … .

Although the Board applied the presumption set forth in Workers’ Compensation Law § 21 (1), we conclude that it is inapplicable here given that the issue in dispute is whether decedent was performing his duties at work when he sustained the injuries that led to his death, which is dispositive of whether the injuries arose out of and in the course of his employment. …

Decedent’s statement to claimant is the most direct evidence that he sustained his fatal injuries while performing his duties at work. Pursuant to Workers’ Compensation Law § 118, “[d]eclarations of a deceased employee concerning the accident shall be received in evidence and shall, if corroborated by the circumstances or other evidence, be sufficient to establish the accident and the injury.” Under the circumstances presented here, we find that claimant’s testimony, together with that of the supervisor who witnessed decedent holding his stomach, provided sufficient corroboration of decedent’s statement … . Matter of Silvestri v New York City Tr. Auth., 2017 NY Slip Op 06123, Third Dept 8-9-17

 

WORKERS’ COMPENSATION LAW (DEATH BENEFITS, UNWITNESSED ACCIDENT, SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING  WORK-RELATED DUTIES (THIRD DEPT))/DEATH BENEFITS (WORKERS’ COMPENSATION LAW, UNWITNESSED ACCIDENT, SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT OCCURRED WHILE DECEDENT WAS PERFORMING  WORK-RELATED DUTIES (THIRD DEPT))

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