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BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant (wife of the decedent worker who died of cardiac arrest) was not notified the board would consider a medical file relating to a prior injury:

Here, the Board relied on medical records apparently contained in the case file for a separate claim filed by decedent based on a November 2014 fall at work. … The employer did not request that the Board rely on those 2014 records, nor did it adhere to the procedure for introducing additional evidence into the administrative appeal that was not before the Workers’ Compensation Law Judge… . The Board’s rule provides that, if that procedure is not followed, the Board “will not” consider such new evidence… .

Claimant was prejudiced because she was not on notice — until she received the Board decision — that the Board would rely on documents from another case file. The employer argues that the referenced medical reports cannot be objectionable because they accurately reflect the treatment rendered, but we cannot verify that without reviewing those reports. The employer further argues that no response to the medical records would change the strength of either side’s argument, but that proposition is mere speculation. Either party may have chosen to submit additional medical records reflecting on decedent’s medical treatment from November 2014 until his death in July 2015 had the parties been on notice that this period of treatment would be at issue. Matter of Kaplan v New York City Tr. Auth., 2018 NY Slip Op 04068, Third Dept 6-7-18

WORKERS’ COMPENSATION LAW (BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT))/EVIDENCE (WORKERS’ COMPENSATION LAW, BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT))

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