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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

January 7, 2011

Existence of conflicting evidence in an administrative proceeding requires conducting a hearing “to fully develop the record”

Existence of conflicting evidence in an administrative proceeding requires conducting a hearing “to fully develop the record”
Matter of Carr v Cairo Fire Dist., 2011 NY Slip Op 00056, Appellate Division, Third Department

James A. Carr, a volunteer firefighter, suffered an injury to the back of his right hand when it was struck by a rotating hose reel handle.

Initially unable to work, while recovering Carr resumed working as a house painter, apparently performing all of his work with his left hand. Subsequently Carr complained of numbness and significant pain in both hands and applied for Workers’ Compensation Benefits.

In the Workers’ Compensation hearing that followed the Workers’ Compensation Law Judge [WCLJ] asked Carr two questions but no sworn testimony was taken, nor was Carr cross-examined by the insurance carrier's attorney notwithstanding the attorney's requesting a "full development of the record with testimony of [Carr] and treating physician,.

Rather, the WCLJ ruled that the carrier had no right to medical testimony and neither Carr’s testimony nor medical testimony was necessary. The Workers' Compensation Board affirmed the decision of the WCLJ, and the insurance carrier appealed.

The carrier argued that the WCLJ should have granted its request to develop the record by obtaining Carr's testimony and by cross-examining Carr's treating physician. The Appellate Division agreed, holding that "[E]ither the claimant or the employer or his insurance carrier may introduce witnesses . . . in compensation proceedings."

The court, noting that there was “conflicting medical evidence” and as “no formal testimony was taken at the . . . hearing,” ruled that the WCLJ’s denial of the insuance carrier's request to cross-examine Carr's attending physician to explore such issues “clearly prejudiced the employer."

The Appellate Division returned the matter to the Workers' Compensation Board “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00056.htm


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