The Importance of Developing Evidence Early

The Importance of Developing Evidence Early

Although the workers’ compensation system is no-fault, these claims are often hotly contested. Whether an insurance carrier contests compensability or denies treatment, litigation is often necessary to ensure that an injured worker gets the full benefits that they are entitled to under the law. But what happens if your client passes away before the claim is resolved?

A recent decision in a New York workers’ comp matter affirmed that a claim may be disallowed if the insurer does not have an opportunity to cross-examine the injured worker, examine evidence, and/or subject them to an independent medical exam. This demonstrates just how important it is to develop evidence early in a workers’ comp claim - particularly when your client is unlikely to live long enough for the claim to be settled.

The Scano Case

Steven Scano was employed by the Taconic Correctional Facility in Bedford Hills, New York.In 2017, his employer asked him to move a car in the snowy parking lot. Mr. Scano later developed frostbite and a wound on his left foot and sought treatment two weeks later. He was admitted to the hospital, where he was diagnosed with diabetes, had his toe amputated, and ultimately developed renal failure and secondary anemia. Approximately one month after being asked to move the vehicle, Mr. Scano filed a workers’ compensation claim.

His employer, through its insurance carrier, contested the claim. Mr. Scano was scheduled to speak at a workers’ compensation hearing and to undergo an independent medical examination (IME). Unfortunately, he died before either could occur. His surviving spouse, Nicole Scano, moved forward with the claim as the administrator of his estate. At a hearing, she offered testimony about the injury from her perspective, an independent review of Mr. Scano’s medical records, and testimony from his treating physician.

The insurance company argued that the claim should be disallowed because the record could not be adequately developed, and as such, it would suffer prejudice. The New York Workers’ Compensation Board agreed, and disallowed the claim.

On appeal, the Supreme Court of New York, Appellate Division, Third Division affirmed this decision. In Matter of Scano v. Docs Taconic Correctional Facility, the Court held that when an injured employee dies before their workers’ compensation claim can be adjudicated, the Board has the discretion to disallow the claim if the record is undeveloped and the insurer cannot develop the record further with regard to contested issues. This ruling was based on the principle that the parties to a workers’ compensation claim are entitled, as a matter of due process, to the “essential elements of a fair trial,” including the chance to cross-examine witnesses, inspect documents, and offer evidence in explanation or rebuttal. While disallowing the claim may not be necessary in every case where an injured worker dies before the matter is resolved, it was appropriate here because the insurance carrier did not have the opportunity to cross examine Mr. Scano or have him undergo an IME.

What Workers’ Comp Practitioners Can Learn from Matter of Scano

This case highlights the importance of developing evidence in a claim as early as possible. Workers’ comp attorneys are already familiar with the various deadlines associated with claims - such as filing a report of an injury or illness within 30 days, and filing a claim within 2 years in most cases. 

The successful resolution of a claim may require much more than simply meeting these deadlines, however. An aggressive approach to developing evidence may ensure that the claim can move forward, even if your client passes away before it is resolved. 

To this end, at the start of a workers’ compensation engagement, you may develop a strategy to gather as much evidence as possible early in the case. If the claim is contested, this may include:

• Arranging a deposition for your client, which will give the insurer an opportunity to cross-examine them; and
• Agreeing to an IME, and scheduling it promptly.

Of course, both a deposition and an IME could lead to the discovery of information or evidence that is unfavorable to your claim. Preparing your client for a deposition and/or an IME is vital to ensuring that their legal rights are protected.

This type of approach may be beneficial in any type of workers’ compensation claim - not just cases where a client has been seriously injured or is in poor health. An unrelated accident or event could also lead to a client’s untimely death, which could put their claim in jeopardy. However, developing evidence early is most critical for claims where you believe that your client may not survive for the duration of litigation. 

In any workers’ comp case, there are always competing interests at play - such as the need to protect your client from overzealous insurance defense lawyers versus the need to develop evidence. If your client’s health is poor, weigh these factors early in the case so that you can make a proactive decision about how to handle the claim. 

Lifelong Albany, NY resident and workers compensation attorney, Paul Giannetti represents injured workers throughout New York. Paul represents injury victims only, and never represents employers or insurance carriers.