Court of Appeals — Workers’ Compensation: Cappellino v. Bauman & Sons Bus Company, et al.

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New York State Court of Appeals

Workers’ Compensation

Untimely Notice of Controversy

Cappellino v. Bauman & Sons Bus Company, et al.
No. 14
Memorandum

Background: The plaintiff’s husband was employed by the defendant as a bus driver. While supervising a van and bus wash, he suffered a fatal heart attack. The plaintiff brought an action seeking death benefits under the Workers’ Compensation Law. The Workers’ Compensation Law judge found that the employer failed to file its notice of controversy. The Workers’ Compensation Board heard testimony from a physician indicating that the activity undertaken by the decedent was not the cause of his heart attack.

Ruling: The Court of Appeals reversed and remanded to the Workers’ Compensation Board for further proceedings.  The court held that there was an undisputed finding that the employer failed to timely file its notice of controversy and there was no showing of good cause or other reason to excuse the failure. The employer should have been precluded from offering its physician’s testimony.

Joel M. Gluck for the appellant; David W. Faber for the respondents