Hearing Officer Greene decided that a worker at Subway had failed to meet her burden of proving a gradual work-related foot injury where the medical evidence did not establish that conditions of the employment increased the risk of injury. The Appellate Division found that “expert medical evidence is not always necessary to establish that conditions of employment increase the risk of injury” and, taking judicial notice of the fact that an average person in daily life does not stand or walk on hard surfaces for 90% of a daily 8-12 hour shift, vacated the Hearing Officer’s finding.
The Hearing Officer also found that the employee had failed to meet the burden of proof for §201(4) where the medical evidence established that the work activities more likely than not contributed to the chronic condition, but did not address the significance of the contribution, whether surgery was necessitated by work activities, or the apportionment of the relative contributions of daily life activities vs. work. The Appellate Division found that “this level of analysis is not required by the law,” citing Celentano v. Dep’t of Corr. and vacated the Hearing Officer’s finding on significant aggravation as well. The case was remanded on an unlitigated notice issue.