New York: Substantial Evidence Required to Rebut § 21 Presumption of Compensability

In order to rebut the presumption of compensability found in N.Y. Workers’ Comp. Law § 21, an employer must come forward with “substantial” evidence, not just some evidence, to the contrary, held a state appellate court. Accordingly, where an employee sustained an unwitnessed fall while at work that caused a serious traumatic brain injury, which also resulted in his total loss of memory regarding the event, it was not enough for the employer to show that the fall could have been caused by the employee’s preexisting cardiovascular condition. Observing that the Board found the claimant’s medical expert more credible than the employer’s expert, the Court found the employer had failed to rebut the presumption.

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 Docking v. Lapp Insulators LLC, 2020 N.Y. App. Div. LEXIS 210 (Jan. 9, 2019)

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

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

For a more detailed discussion of the case, see

Sign up for the free LexisNexis Workers’ Compensation enewsletter at www.lexisnexis.com/wcnews.