Indicating that in New York there were two requisites for reopening a claim based on newly acquired evidence: (a) the application to reopen “must be made within a reasonable time after the applicant has had knowledge of the facts constituting the grounds upon which such application is made” and, (b) the application “must be substantiated by supporting affidavits” where allegations of newly discovered evidence are made, a New York appellate court recently affirmed a finding by the state’s Workers’ Compensation Board that denied an employer’s application that contended it had acquired evidence that an employee’s murder at work was unrelated to the employment [Claim of Baum v. Hylan Group Inc., 2014 N.Y. App. Div. LEXIS 901 (Feb. 13, 2014)]. The ensuing claim for workers’ compensation death benefits was established in 2004, but in 2010, the employer sought to reopen the case.
On appeal, the Third Department acknowledged that the employer allegedly did not ascertain the facts surrounding decedent’s death until several months before its 2010 application for reopening. The court noted further, however, that the employer had cited a 2005 press release in support of its assertions, yet it had offered no affidavit to explain the delay in bringing this information to the Board’s attention. Accordingly, the Board’s decision was affirmed.
Commentary: I usually appreciate the pithy opinions coming out of the Third Department. But when the court uses the term “delay in bringing the information to the Board’s attention,” is it (a) referring to the delay of “several months” before the 2010 application to reopen, or (b) saying it wanted an explanation as to why it took five years to discover the 2005 press release? If it means the former, that was hardly much of a delay. If it means the latter, it should say so, since that changes the law. The employer, after all, cannot disclose to the Board or the Court something that it has yet to discover.