Defenses To New York Workers' Compensation Claims

New York Workers’ Compensation claims can be denied for various reasons. The following is a brief overview of the most commonly used defenses.


Out of and in the Course of Employment

Accidents that do not occur “out of and in the course of employment” are not compensable. To determine whether an accident arose within the course of employment, the claimant must prove that two conditions are met: (1) That the accident occurred during work while performing work activities that she/he were hired to perform; and (2) the accident occurred as a result of the employment activity. If the claimant was injured while engaging in activities that were not work-related, the case should be denied by way of SROI-04/FROI-04.


No Employer-Employee Relationship

A claim for Workers’ Compensation benefits can be denied entirely if the claimant was not an employee of the employer at the time of the accident. However, if the claimant is able to prove that he was paid by the employer for his work, the Court will likely deem that proper employer-employee relationship exists. Other factors used by the Court to confirm whether a claimant is an employee include: (1) whether the employer directed/supervised the claimant; (2) whether the employer had the ability to hire/fire the claimant; and/or (3) whether the employer set the claimant’s work hours and work location.


Generally, when a claim is denied on the basis of employer-employee relationship, the employer/carrier will assert that the claimant was either an independent contractor or the claimant was employed by a different employer. This situation most commonly occurs on construction projects whereby the claimant may be an employee of a subcontractor. The issue of employer-employee relationship then becomes a factual issue to be determined by the law judge.


Untimely Notice

An injured employee must provide notice of a work-related accident to the employer within 30 days, in-writing or orally. The 30 day notice requirement allows the employer to investigate the accident and determine whether the accident is in fact work-related. If direct notice of the accident is not provided, the claimant can assert that constructive notice of the accident was established. Constructive notice occurs when the employer gains knowledge of the accident in a manner other than directly by the claimant (i.e by way of witnesses or video). The claimant must establish that the lack of actual timely notice did not prejudice the employer from timely investigating the accident.


If notice is not provided within 30 days, the claim should be denied.  The Court has the discretion to excuse the notice requirement if there is sufficient evidence that notice could not have been given or on the ground that the employer was not been prejudiced by the late notice.


Expiration of Statute of Limitations

A claim for New York Workers’ Compensation benefits must be filed by the claimant within two (2) years from the date of accident. This includes occupational disease claims, whereby the injured worker asserts that his/her injury occurred overtime as a result of his/her work activities. For occupational disease claims and occupational exposure claims, the injured worker must file their case two years from the date they became disabled (stopped working) or the date they knew or should have known that the injury was caused by their employment.


If the claim was filed over two years after the date of accident/date of disablement or the date they knew or should have known that the injury was caused by their employment, the case should be denied.


Causal Relationship

A case can also be denied if the claimant’s condition/injury is not causally related to his/her work activities. This denial basis is a medical determination and is generally supported by the medical opinion from a Board-Certified physician. If a medical report is procured, specifying that the claimant’s alleged injury is not causally related to the accident of record, the case can be denied, pending the completion of medical testimony. The law judge will be review the medical testimony and determine whether the physician was credible in determining causal relationship between the accident and injuries.


Less Commonly Used Defenses

Accidents that occur during lunch breaks (off-premises) or while performing personal errands are not compensable and should be denied. Additionally, injuries that occur during travel to and from work are also not compensable (please see prior article “Coming and Going Rule” for exceptions).  The facts of each case will determine whether the denial will be upheld.  


If there is evidence that an employee was injured as a result of intoxication, the case can be denied. However, the employer/carrier must prove that the intoxication was the sole cause of the accident. If the injured worker can produce evidence that the accident occurred due to other factors, the Court will deem the accident compensable.  


More Questions?

Although, it is the claimant’s burden to establish a work-related injury, the burden shifts to the employer to prove that the accident is not work-related once defenses are raised. It is imperative to timely raise the proper defenses in order to have a chance at a successful outcome. If you have more questions regarding the denial of a claim, please contact Usra Hussain at