A case out of New York determined that an employer needed a significant amount of evidence in order to rebut a presumption of compensability in the state’s workers’ comp law for injuries that are unwitnessed or unexplained. The state appellate court told the employer it was their burden to provide “substantial” evidence to the contrary, and even medical opinion evidence that is presented as speculation is insufficient.

An employee who worked as a hazmat driver for Lapp Insulators sustained a fall that caused a traumatic brain injury. There were no witnesses, and at the time of the fall he was outside a stockroom loading a cart with boxes. He was found by coworkers a short time later, bleeding from a laceration on his head. He did not have any memory of the fall or his head injury.

He filed for workers’ comp which was contested by his employer and their insurer. Initially a WCLJ found that the New York comp law presumption applied, and his employer failed to rebut it, so he was entitled to benefits. The Board affirmed and the employer appealed, saying his accident was not associated with his job duties but with his preexisting cardiovascular condition. They presented medical reports from Louis Medved, a neurologist who had performed an independent medical exam of the workers and reviewed his medical records. Medved said that he had a history of atrial fibrillation for which he had undergone cardioversion. Though he attributed his loss of consciousness and resulting brain injury to this underlying condition, MedVed said that when the worker got to the hospital, he was in normal sinus rhythm.

Sara Connolly, a physician specializing in emergency medicine who was there when he was brought in and who diagnosed him with an intracranial hemorrhage, said that his heartbeats and pulse were normal and had no murmurs. His hematology and EKG test results were also normal. She said his injuries were consistent with the type of fall he experienced.

The appellate court observed that the Board found Connolly more credible than MedVed and concluded his testimony was unduly speculative and insufficient to rebut the presumption under NY Workers’ Comp law. The employer’s presentation of “some” evidence was not enough to rebut it and his claim was compensable.

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