Claim denied for worker who died before testifying

A workers compensation claim filed by a man who said he developed frostbite on the job is not compensable because he died before enough evidence of the claim could be collected, an appellate court held Thursday.  

In Matter of Scano v. Doccs Taconic Correctional Facility, the Supreme Court of New York, Appellate Division, Third Department unanimously affirmed a New York Workers Compensation Board ruling that the correctional facility employee was unable due to his death to connect his injury to the workplace.

Steven Scano was moving a car at his employer’s direction and claimed that the action caused him to get frostbite on his left foot. When he sought treatment two weeks later, his foot was infected and he had a toe amputated. He was also diagnosed with diabetes, renal failure and secondary anemia.

He filed a claim for workers compensation for the foot injury about a month after the accident. He was scheduled for an independent medical examination and to testify regarding the genesis of his injury, but died before either occurred. His employer’s comp insurer denied the claim on the basis it was unable to adequately develop the record given Mr. Scano’s death, and the New York Workers Compensation Board disallowed the claim.

Mr. Scano’s family appealed, but the appellate court affirmed the denial. Although the insurer was able to have Mr. Scano’s medical records review and have his widow testify on his behalf, the court found that there was no direct evidence detailing Mr. Scano’s work activities on the date of the incident or that they led to his condition. Rather, the court found that the medical evidence connecting his exposure to the toe amputation was based on the account of his widow, although a treating physician acknowledged that the toe condition could have been caused by something as minor as a small cut because of his diabetes.