A Donkey Out the Door and a Fall Through a Floor: Lessons from Two Recent New York Third Department Decisions

Two new decisions from the New York Appellate Division, Third Department, offer important lessons for carriers and employers.

Gonzalez v. Expo Concrete, decided October 8, 2026

On the date of the accident, the claimant, who worked as a carpenter, reported to his employer that he tripped and fell over debris on the floor, injuring his face and left arm. Then, two weeks later, he tells his physician that he fell 10 feet, injuring his head, neck, back, right arm, right hand, and left elbow. The claimant’s C-3 claim form indicated that he stepped on plywood that broke and he fell through the floor.

Despite there being three separate descriptions, the Board refused to find that the claimant fraudulently misrepresented his accident in violation of WCL 114-a.

The Board found the claimant’s excuse was credible:

The claimant explained that the reason he gave a different account of how he fell to the employer that day was that, after his fall, coworkers told him that if he reported that he fell through the floor, he would get the coworkers and the employer in trouble.

To me, because it is much easier in New York to win a civil case where there is strict liability for falling from an elevated height (Labor Law 240) rather than just tripping and falling to the ground, this is not a just a minor discrepancy.  The trouble with this, however, was that there was no dispute that the claimant had some kind of on-the-job injury and the Board found the mechanism to be immaterial. It was not reported whether the carrier raised motivation for a potential third-party lawsuit as the reason why the claimant changed his story.

Mulligan v. Moy Construction Corp., decided October 8, 2026

You don’t see too many donkey cases in New York. Here, the claimant, who also worked as a carpenter, was working on a shed that housed animals at his employer’s residence when a donkey got loose. The employer asked for help to get the donkey back into the shed. After wrangling the donkey and unloading his tools, the claimant began experiencing chest pains. It turned out he was having a heart attack. After a claim was filed for the heart attack, the carrier, who wanted to controvert the claim, failed to file the First Report of Injury (FROI)-04 notice of controversy within the 25-day period after the notice of indexing. Nonetheless, the Law Judge still found the claimant did not have a work-related injury. Thereafter, the Board Panel reversed and found the late FROI-04 barred the carrier’s defenses. And the Third Department affirmed that decision, finding that a late FROI-04 “requires” the Board to preclude the carrier from offering testimony or dispute a claimant’s evidence on causation. There may have been various defenses here, including that the task of retrieving a donkey may be outside of the scope of employment. Practice tip: Make sure to keep the barn door closed and file a timely FROI-04.