You are here: / / SUBSTANTIAL EVIDENCE SUPPORTED THE DETERMINATION THE UNWITNESSED ACCIDENT...

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))

You might also like
Motion to Resettle Explained
SUBPOENA SEEKING 1099 FORMS SHOWING THE INSURER’S PAYMENTS TO TWO DOCTORS WHO PERFORM MEDICAL EXAMS FOR THE INSURER IN PERSONAL INJURY CASES SHOULD NOT HAVE BEEN QUASHED; WITH RESPECT TO THE SUBPOENA FOR THE MEDICAL RECORDS ASSOCIATED WITH THE EXAMS, THAT ISSUE WAS NOT ADDRESSED BY SUPREME COURT AND CAN NOT, THEREFORE, BE ADDRESSED ON APPEAL (THIRD DEPT).
Religious Brochure Urging Confession (Given to Defendant by a Deputy Sheriff) Required Trial Court to Make Sure Defendant Understood His Right to Refrain from Testifying at Trial—Trial Court’s Colloquy with Defendant Deemed Sufficient
THE DEFENDANT WAS NOT NOTIFIED HE WOULD BE CLASSIFIED AS A SEXUALLY VIOLENT OFFENDER, A VIOLATION OF HIS RIGHT TO DUE PROCESS WHICH DEPRIVED HIM OF THE OPPORTUNITY TO CHALLENGE THE DESIGNATION ON CONSTITUTIONAL GROUNDS; MATTER REMITTED (THIRD DEPT). ​
AGREEMENT TO FOREGO APPLYING FOR A REAL PROPERTY TAX EXEMPTION IN RETURN FOR THE TRANSFER OF TWO BUILDINGS FOR ONE DOLLAR WAS ENFORCEABLE.
PLAINTIFF BANK’S ATTEMPT TO DE-ACCELERATE THE MORTGAGE JUST BEFORE THE STATUTE OF LIMITATIONS RAN WAS PROPERLY REJECTED (THIRD DEPT).
DOUBLE HEARSAY SUPPORTED THE DENIAL OF THE APPLICATION TO HAVE A REPORT MAINTAINED BY THE CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT AMENDED TO BE UNFOUNDED AND EXPUNGED (THIRD DEPT).
Res Ipsa Loquitur Proof Requirements Not Met Re: Cause of Fire

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT ABUTTING PROPERTY OWNER FAILED TO ELIMINATE ALL TRIABLE ISSUES OF... FAILURE TO ANSWER SOME QUESTIONS AT THE 50-H HEARING REQUIRED DISMISSAL OF THIS...