There is a particular kind of insult that comes at the end of a bad workers’ compensation denial. Not “we don’t think it happened at work.” Not “we think you were already hurt.” The one that says, in effect, you did this to yourself deliberately, to get paid.
The Appellate Division, Third Department, dealt with exactly that argument last week, and the way it came out is worth knowing — particularly the part about the surveillance video.
What happened
An assistant manager at a retail store was scanning newly delivered inventory in December 2023 when she dropped a box of merchandise onto her lower left leg. She reported it immediately. She was treated for foot pain the same day, and for knee pain several days after that.
The employer and the carrier contested the whole thing. The Board established the claim anyway, for both the left foot and the left knee, and the carrier appealed. The Third Department affirmed (Matter of Rosario v William Carter Co., 3d Dept, Sept. 17, 2026, Docket No. CV-25-0826).
You do not start at zero
This is the part injured workers almost never know, and it matters enormously when a carrier starts making accusations.
Workers’ Compensation Law § 21 sets out presumptions that apply in any proceeding to enforce a claim. One of them, § 21(3), presumes that the injury was not occasioned by the willful intention of the injured employee to bring about the injury.
Read that again, because of where it puts the burden. A carrier that wants to argue you hurt yourself on purpose is not making a point you have to disprove. It is trying to overcome a statutory presumption, and it can only do that with substantial evidence to the contrary. Suspicion is not evidence. Neither is a theory.
The related presumptions — that the claim comes within the statute, that notice was sufficient, that your medical reports are prima facie evidence of what they contain — are covered on our page about what happens when an employer denies you worked there.
The video cut the other way
Injured workers tend to hear “surveillance” and assume the worst, and usually with reason — carriers film people and use the footage to argue the disability is exaggerated. We have written about that on our page on working while collecting benefits.
Here it went the other direction entirely. In the court’s words, the video “shows claimant looking elsewhere as she drops the box near her left leg and then reacting in a manner consistent with her being struck by it,” and it corroborated her account. The court noted that the footage “gave no support for the carrier’s proposition that she had intentionally sought to injure herself.”
Two ordinary details did the work: she was not looking at the box, and she reacted the way a person reacts when something lands on her leg. Nobody staging an injury looks away first.
The carrier’s own doctor agreed with her
The orthopedic surgeon who examined her at the carrier’s request agreed with her treating physicians that she had injured her left foot in the accident.
This happens more than people expect, and it is one of the reasons we tell clients to attend the independent medical examination and describe what happened plainly. The examiner is paid by the carrier, but he still has to write down what he finds, and what he finds is sometimes the best evidence in the file.
The knee, and the word “equivocal”
The knee was the closer question. The same orthopedic surgeon did not agree the knee was related. But the court described his opinion on that point as equivocal, and the Board credited the treating physicians over it.
That is the whole ballgame in a lot of disputed claims. The Board resolves conflicts in the medical proof, and a hedged opinion loses to a clear one. A doctor who will not commit is not much use to the side that hired him — which is the same reason a treating physician who writes a vague report is not much use to you. That problem is the subject of our post on why your medical reports must state a degree of disability.
The delayed knee complaint did not sink it
Worth noticing: she was treated for the foot the same day and for the knee several days later. Carriers lean on that gap constantly — if the knee really got hurt, why didn’t you mention it on day one?
It did not carry the day here. A box landing on a leg can hurt a foot loudly and a knee quietly, and the second one shows up once the first one settles down. What mattered was that she reported the accident immediately and kept treating.
Why the carrier lost on appeal
The standard of review is the reason these appeals so often fail. As the court put it: “Whether a compensable accident has occurred is a question of fact for the Board to resolve, and we will not disturb its determination so long as such is supported by substantial evidence in the record.”
The appellate court is not re-deciding whether it believes you. It is asking whether there was substantial evidence for what the Board already decided. That cuts both ways, which is why the real fight is at the Board level, while the record is still being built. Our page on denied claims and appeals walks through that sequence.
What to take from it
- An accusation is not a finding. A carrier suggesting you hurt yourself on purpose has to overcome a presumption, with real evidence.
- Report the accident immediately, the day it happens, to someone who can write it down.
- Ask whether there is video. In a store, a warehouse or a loading dock, there usually is, and it does not always favor the carrier.
- Mention every body part, including ones that only ache a little at first.
- Keep treating. A gap in the records is what the carrier’s argument is built on.
- Get clear medical opinions. Equivocal loses.
Talk to a New York workers’ compensation attorney
Being accused of faking is demoralizing, and it makes people want to walk away from a claim they are entitled to. That is frequently the point of the accusation. It is not a reason to give up a case.
Call (718) 701-2776. The consultation costs nothing, and you will speak with me.
We handle workers’ compensation claims for injured workers throughout the five boroughs and across New York State. If we don’t recover money for you, we don’t get paid.
Nothing on this page is legal advice about your own claim. This post discusses a published appellate decision, and every case turns on its own facts and its own record.
