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Producing Records: Judge finds for Employer – WCB Reverses

In Curtis v. Xerox, N.Y.A.D. 3rd Dep’t, ___ N.Y.S.2d ___ (decided October 8, 2009), the claimant alleged that her 33 year employment caused her to develop occupational conditions related to her use of a computer keyboard. The claimant stopped working in July 2005, and thereafter visited the employer’s ‘plant medical department’ receiving treatment. The Workers’ Compensation Law Judge (WCLJ) directed the employer to produce the records of this treatment. The employer failed to do so.

After trial, the WCLJ issued an opinion denying the claimant’s occupational claims. On appeal, the Workers’ Compensation Board ordered the employer to produce the records within two weeks, or be subject to an ‘inference’ at trial that the occupational disease was causally related to the employment.

At trial, the employer produced a lay witness to state that no medical records existed for the claimant. Once again, after trial, the WCLJ dismissed the case, stating that there was insufficient proofs to establish the occupational claims.

Once again, the trial decision was reversed by the WCB, who found that “testimony regarding the non-existence of records” was improper. The WCB found the occupational claims “causally related” to the employment.

The employer appealed.

On appeal, the Appellate Division agreed with the employer, that testimony that “there were no records” should not have been precluded. However, the Appellate Division stated that the decision of the WCB was ‘supported by substantial credible evidence’ and they affirmed the award of compensation. The Appellate judges went on to state that WCLJ ‘abused his discretion’ by allowing the employer multiple adjournments to locate the medical records/testimony requested by the Judge.

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