NY Worker’s Claim Denied Where He Died Before Record Could be Established

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that disallowed the claim of an employee who sought workers’ compensation benefits approximately one month after an alleged accident and who died some ten weeks later, before the record could be adequately developed [Matter of Scano v. Doccs Taconic Corr. Facility, 2021 N.Y. App. Div. LEXIS 4165 (3d Dept., June 24, 2021)]. The Court acknowledged that under some circumstances, the Board had the power to continue the proceeding and, if appropriate, make an award. The Court found, however, that under the circumstances, the employer and carrier would be unable to cross-examine the deceased employee regarding the circumstances of his claimed injury. Nor could they have him examined by a physician of their choice. That denial of due process was sufficient to support the Board’s decision to disallow the claim.

Background

On March 20, 2017, Scano (hereinafter decedent) was directed to move a car in his employer’s snowy parking lot. That activity purportedly caused his boots and socks to become wet. He alleged that as a result, he developed frostbite and a wound on his left foot. Two weeks later, when decedent sought treatment, his left foot was found to be infected and exhibiting signs of tissue necrosis. Decedent was admitted to the hospital, where he was diagnosed with diabetes, underwent surgeries to amputate a gangrenous toe and to address osteomyelitis, and developed renal failure and secondary anemia.

Decedent applied for workers’ compensation benefits approximately a month after the alleged accident. The employer and its workers’ compensation carrier controverted the claim on grounds of accident, notice and causal relationship, and decedent was scheduled to testify at a hearing and undergo an independent medical examination. Decedent died before either could occur.

The matter continued with, inter alia, testimony from decedent’s widow as to what she knew about the genesis of his injuries and from a physician who had examined decedent, as well as an independent medical review of his medical records. The carrier then argued that the record could not be adequately developed given decedent’s death and that, in view of the prejudice caused by its inability to question or have a medical expert examine decedent, the claim should have abated at his death. The Board ultimately agreed and disallowed the claim, and decedent’s widow appealed.

Appellate Court’s Decision

The Court initially noted that where an injured employee dies before his or her workers’ compensation claim can be adjudicated, the Board has discretion to continue the proceeding, resolve any controversies and, if appropriate, make an award of workers’ compensation benefits. The Court added that the parties, however, were fully entitled to due process and to the essential elements of a fair trial in resolving the controversies, including the opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation or rebuttal.

The Court noted that here the record was undeveloped. Decedent had not testified or undergone an IME despite diligent efforts by the carrier to secure both, when he passed away 10 weeks after filing his claim for workers’ compensation benefits. The Court acknowledged that the record was thereafter developed with, among other things, testimony from decedent’s widow, individuals associated with the employer, and a physician who had examined decedent before he died.

What was not produced, stressed the Court, was any direct evidence detailing decedent’s work activities on March 20, 2017, or establishing that they led to his worsening physical condition. Indeed, observed the Court, the medical evidence connecting the condition of decedent’s left foot to his purported exposure to wet and cold was based on the assumption that his account was accurate. One of his treating physicians acknowledged that he could have developed the same problems from something as minor as a small cut in view of the fact that he was a diabetic.

The Court concluded that the foregoing constituted substantial evidence for the Board’s determination that the record was not developed at the time of decedent’s death and that the carrier, which would never be able to cross-examine decedent or have him physically examined to learn more about what occurred on March 20, 2017, and how those events led to his injuries, would not have the opportunity to be heard to which it was entitled. The Board’s decision was accordingly affirmed.