A recent decision, Siennikov v. Professional Grade Construction Corp., restricts presumptions in favor of compensability, greatly assisting employers with unwitnessed accidents. While the decision does not change existing law it halts a gradual drift, through misinterpretation, regarding what is to be assumed in the absence of actual evidence.
Merely Filing a Work Comp Claim Does Not Mean It’s Compensable
Section 21 of the NY Workers’ Compensation Law, presumes that an accident which occurs at a workplace during work hours is work related, absent substantial evidence to the contrary. But in recent decades that has been incorrectly broadened to mean that every claim filed, even if unwitnessed, in presumptively correct.
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The new decision reaffirms that old rule. The presumption applies only to accidents which are shown to have actually occurred. There is no presumption that an unwitnessed accident has actually taken place. Merely filing a compensation claim does not mean that anything is presumed to have actually occurred.
How should this affect the way an employer reports accidents to the Board and carrier? If an employer in filing its own report of injury (C-2) merely repeats what the employee stated it will appear that the employer has done some investigation and sees no reason to doubt the claim. If that is ever to be unraveled it will involve trials, testimony and appeals.
How does an employer deal with this?
Investigate Unwitnessed Accidents ASAP
As soon as an unwitnessed accident is reported contact the carrier by phone, email and surface mail (all three!) and inform the carrier that an unwitnessed accident has been reported BUT CAN NOT YET BE VERIFIED. Say that an investigation will be done ASAP.
If an investigation verifies that an accident has occurred, so notify the carrier. This will limit unnecessary issues and focus attention on issues that can be developed.
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If an investigation still cannot confirm, by objective evidence, that an accident has occurred send a written addendum to the carrier by email and surface mail. AND include a phone call. Make a detailed summary of what efforts were made to investigate the claim.
When mailing material do so by certified mail, return receipt requested, and carefully save your copy with proof of mailing.
Unwitnessed accidents account for a large percentage of workers’ compensation contested claims. Early efforts by the employer will greatly improve results.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]
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