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A New York appellate court reiterated the important legal point that while it is true that, absent substantial evidence to the contrary, N.Y. Work. Comp. Law § 21(1) affords a presumption that an accident that occurs in the course of employment also arises out of such employment, the statutory presumption cannot be used to establish that an accident occurred in the first instance, nor does it 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. Accordingly, where a farmhand filed a claim, asserting that he injured his right shoulder on a specific date, approximately one year earlier, while assisting in a "particularly difficult" birth of a calf and a representative of the employer testified that no calves were born on that date and that there had never been any report of injury, it was within the Board’s province to believe the representative and not the farmhand.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Matter of Elias-Gomez v. Balsam View Dairy Farm, 2018 N.Y. App. Div. LEXIS 4553 (3rd Dept. June 21, 2018)
See generally Larson’s Workers’ Compensation Law, § 130.05.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law