Steele v. Steven McGee Construction

Insurance Company

American Interstate Insurance

Date Decided

March 3, 2014

Panel Members

Timothy Collier

Elizabeth Elwin

Mike Stovall


Fringe Benefits Fringe Benefits Partial Incapacity


Fringe Benefits Partial Incapacity Calculation of Benefits 21-Day Notice Reduction of Benefits

File Size

190 KB


Summary from the Troubh Heisler Attorneys

The panel upheld HO Knopf’s decision reducing Steele’s benefits to partial in accordance with a presumed minimum wage-earning capacity. McGee was voluntarily paying Steele incapacity benefits without prejudice, and McGee could have filed a 21-day notice reducing benefits. Instead, McGee filed a petition for review, and the Appellate Division agreed with the HO Knopf that, as the petitioning party, McGee had the burden of proof on all issues. If McGee had filed a 21-day reduction, and Steele responded with a petition for review, he would have had the burden of proof.

The Appellate Division also upheld HO Knopf’s decision that Steele had the burden of producing evidence to create an issue whether his psychological condition caused additional incapacity, and that the evidence Steele presented at hearing failed to raise that issue. In dissent, HO Stovall expressed his view that Steele’s evidence was sufficient to carry that burden of production, thereby requiring McGee to prove that the psychological condition did not contribute any additional incapacity.

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