New York: Hearsay Evidence Relied Upon to Show Employee Fraud

Illustrating the point that formal rules of evidence can sometimes be relaxed within the context of workers’ compensation claims, a New York appellate court affirmed a finding by the state Board that an injured employee violated the state’s employee fraud provision—N.Y. Workers’ Comp. Law § 114-a—in spite of the fact that the employer’s primary evidence for the claimant’s alleged misrepresentations, was hearsay. Claimant testified and reported that he had completed and filed numerous job applications. The employer’s investigator testified that he had checked with the prospective employers to which the claimant had reported he had submitted applications. According to the investigator, the prospective employers informed him that there was no application on file from claimant, the position applied for did not exist and/or the prospective employer did not provide or accept applications in the form that claimant purportedly used in submitting the application, and the contact name listed by claimant did not work for the prospective employer. That evidence was sufficient to support the Board’s order disqualifying claimant from further benefits.

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 Calabrese v. Fortini Inc., 2020 N.Y. App. LEXIS 207 (Jan. 9, 2019)

See generally Larson’s Workers’ Compensation Law, § 39.02.

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

For a more detailed discussion of the case, see

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