New York: Widow Establishes Death Benefits Claim Without § 21(1) Presumption

A state appellate court held that while it was inappropriate for the Board to apply the presumption of compensability found in N.Y. Work. Comp. Law § 21(1), given the fact that the issue was whether decedent was actually performing his duties at work when he sustained the injuries that led to his death, the decedent’s widow (“claimant”) had nevertheless produced sufficient evidence to support the Board’s award of death benefits. The widow testified that on the date of the alleged injury, she found the decedent at 3:00 p.m. at home in bed, approximately one hour after he had completed his shift, that the decedent stated that he had fallen off a ladder into “the pit” at work and that he was having difficulty walking, breathing and getting in and out of bed. The following morning, decedent was treated at a hospital for fractured ribs and sent home. His condition did not improve and, three days later, claimant brought her husband back to the hospital. This time, in addition to the rib fractures, decedent was diagnosed with a ruptured spleen, as well as a punctured lung, and was admitted to the hospital. He died the following day of complications that were medically tied to blunt impact injuries to his trunk. While the presumption of compensability could not be used to establish that an accident actually occurred, claimant had established her claim without it.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See In re Claim of Silvestri, 2017 N.Y. App. Div. LEXIS 6078 (Aug. 10, 2017)

See generally Larson’s Workers’ Compensation Law, § 7.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law