ALTHOUGH THE CARRIER HAD WAIVED ITS DEFENSE THAT THE INJURIES DID NOT ARISE OUT OF CLAIMAINT’S EMPLOYMENT BY FAILING TO SERVE A PREHEARING CONFERENCE STATEMENT, CLAIMANT WAS STILL REQUIRED TO PRESENT SUBSTANTIAL EVIDENCE OF SUCH A CONNECTION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that, although the carrier had waived its defense that claimant’s injuries did not arise out of claimants’ employment as a police chief (by not serving a prehearing conference statement), the claimant was still required to present affirmative proof of that causal connection:

… [W]e agree with the Board that, as a result of its waiver of defenses, the carrier was precluded from submitting evidence on the issue of whether claimant’s injuries arose out of and in the course of claimant’s employment … . However, the waiver of defenses did not relieve claimant of his obligation of coming forward with sufficient proof to establish that he sustained a compensable injury … . In that regard, claimant bore the burden of demonstrating that a sufficient causal nexus existed between his employment and the motor vehicle accident that caused his injuries … . The degree of control exercised by the employer over the claimant’s activities at the time of the accident is controlling in determining whether the requisite causal nexus exists … .

The record evidence establishes that claimant, the Village Chief of Police, was in an accident while driving his police vehicle on the third day of a personal weekend trip to his son’s college, roughly 4½ to 5 hours away from the Village. Claimant testified that he carried his work cell phone, that he was on call 24 hours a day and that he drove his police vehicle to his weekend destination so that he could return to the Village if needed. However, claimant testified that he was not recalled at any point during the weekend and was not in the course of returning to work or attending to any other police matter at the time of his accident. Matter of Love v Village of Pleasantville, 2020 NY Slip Op 07968, Third Dept 12-24-20