Silvestri ex rel. Silvestri v. New York City Transit Authority

Appeals from two decisions of the Workers’ Compensation Board, filed January 6, 2006, which ruled,

Frank Silvestri (hereinafter decedent) was employed as a maintenance worker for a municipal transit authority (hereinafter referred to as the self-insured employer), and his duties included repairing subway cars. On April 24, 2014, after decedent had completed his 6:00 a.m. to 2:00 p.m. shift, claimant — his wife — found him in bed at around 3:00 p.m. when she returned home from her job. According to claimant, decedent stated that he had fallen off a ladder into “the pit” at work and that he was having difficulty walking, breathing and getting in and out of bed. Decedent went to the hospital the following morning and, after being diagnosed with fractured ribs, was given painkillers and sent home. His condition did not improve and, three days later, claimant brought him back to the hospital. This time, in addition to the rib fractures, decedent was diagnosed with a ruptured spleen, as well as a punctured lung, and was admitted to the hospital. He died the following day of “[cjomplications of blunt impact injuries to trunk with bronchopneumonia and hemoperitoneum.”

Thereafter, claimant, on behalf of decedent, filed a claim for workers’ compensation benefits for injuries that decedent sustained as a result of a fall that allegedly occurred at work on April 24, 2014. She also filed a claim, in her capacity as his widow, for workers’ compensation death benefits. The self-insured employer controverted both claims. Following a hearing, a Workers’ Compensation Law Judge issued decisions ruling that the injuries to decedent’s spleen and ribs, and his consequential death, were the result of a work-related accident and awarded benefits accordingly. The Workers’ Compensation Board upheld these decisions, and the self-insured employer now appeals.

The self-insured employer argues that there is a lack of substantial evidence supporting the Board’s finding that decedent’s injuries and ensuing death were the result of an accident that occurred at work and that it erroneously relied on the presumption contained in Workers’ Compensation Law § 21 (1) in reaching this conclusion. Initially, Workers’ Compensation Law § 21 (1) provides a statutory presumption that “an unwitnessed accident which occurred ‘within the time and place limits’ of employment arose out of that employment” (Matter of Fedor-Leo v Broome County Sheriffs Dept., 305 AD2d 760 , 760 [2003], quoting Matter of McCabe v Peconic Ambulance & Supplies, 101 AD2d 679 , 680 [1984]; see Matter of Schwartz v

Although the Board applied the presumption set forth in Workers’ Compensation Law § 21 (1), we conclude that it is inapplicable here given that the issue in dispute is whether decedent was performing his duties at work when he sustained the injuries that led to his death, which is dispositive of whether the injuries arose out of and in the course of his employment. At the hearing, it was established that there were no known witnesses to the incident that caused decedent’s fatal injuries and that no accident involving him was reported to the self-insured employer, nor was an accident report ever filed. It was revealed that decedent’s maintenance duties sometimes required him to repair subway cars while they were suspended over a pit — that was four to five feet deep with a cement floor — through the use of a ladder. Time sheets disclosed that, on April 24, 2014, decedent worked a full shift from 6:00 a.m. to 2:00 p.m. Claimant testified that, when she found decedent in bed later in the afternoon on April 24, 2014, he told her that he had fallen off a ladder into “the pit” at work, but did not provide any further details. She stated that, at decedent’s funeral, she was told by individuals who worked with him that a coworker had picked decedent up out of the pit, but did not want to come forward with information for fear of losing his job.

Although three maintenance employees testified on behalf of the self-insured employer, their testimony did not contradict claimant’s testimony. None of these witnesses testified that