On March 19, 2019 the Appellate Divison of New York’s Supreme Court ruled that the materials held by and created by a third-party observer to an independent medical evaluation were protected by litigation privilege. The observer, a service called “IME Watchdog” was hired by the plaintiff’s counsel in a civil action. The service describes itself as “a weapon against insurance companies and their hired gun IMEs.”
This is a case of first impression in New York and can be found atMarkel v. Pure Power Boot Camp. In Markel, the plaintiff appeared for a physician exam with an IME doctor chosen by the defense. The plaintiff’s attorney hired a person from IME Watchdog to be present. The defense then served a subpoena on the IME Watchdog service seeking notes, reports, and other materials. The IME Watchdog ultimately prevailed in having the subpoena quashed as the court found that the qualified litigation privilege applied.
The court ruled that the materials (including the notes and reports created by the IME Watchdog and which were the subject of the subpoena) were created in preparation for litigation. The court found that the IME Watchdog was an agent of plaintiff’s attorneys and therefore the materials were protected under CPLR 3101(d)(2).
Lois Law Firm attorney Christian Sison recently secured a favorable result for a client before the New York Workers’ Compensation Board on the issue of labor market attachment. After multiple doctors testified to the claimant’s temporary degree of disability, Christian successfully argued that the claimant could return to light duty work. The Law Judge directed the claimant to produce evidence of work search, and Christian duly requested to cross-examine the claimant on these alleged efforts.
At trial, the claimant admitted that he sought employment for positions that required heavy manual labor. The Law Judge rejected arguments that the work search was not made in good faith, as the job duties were in excess of the claimant’s adjudicated disability. However, Christian appealed to the Board Panel. The resulting Decision overturned the Law Judge, confirming our client’s right to suspend benefits.
Specifically, the Board Panel found that the claimant “made a cursory effort to seek employment.” The Panel also noted that the record “contain[ed] no evidence that the jobs the claimant sought were within his restrictions.” Therefore, this claimant was not entitled to any awards after being found fit to return to work in a light duty capacity.
Decision Date: April 3, 2019
Court: Jamaica Workers’ Compensation Court
Case: JS v. ECM
Lois Attorneys Christian Sison and Managing Partner Greg Lois discuss the definition “employee” under the New York Workers’ Compensation Law. The attorneys examine the defense of “non-employment” in the benefits context as well as practical application of the definition to independent contractors, brand ambassadors, and gig economy workers. This video is taken from the April 15, 2019 webinar provided by the Firm.
Claimant was a clerical worker who filed FMLA paperwork alleging an injury to her neck. Shortly thereafter she was diagnosed with bilateral carpal tunnel syndrome. We raised the issue of unrelated wage loss at the initial hearing.
At trial before the Workers’ Compensation Board, trial attorney Andrea Abudayeh aggressively argued that claimant voluntarily removed herself from the labor market. In furtherance of this argument, we produced all FMLA paperwork to the board’s file. We asked specific questions to claimant and her doctor regarding the initial treatment and reason she went out of work in the first place. Due to our thorough understanding of this matter and strategic cross-examination of claimant’s doctor we got the doctor to concede that claimant stopped working due to an unrelated condition to her cervical spine. Claimant’s expert doctor admitted that he did not diagnose the carpal tunnel syndrome until weeks after the claimant stopped working. The doctor also conceded that the claimant’s neck condition has nothing to do with her work duties. Continue reading Trial Win: Lois Attorney Andrea Abudayeh Prevails with Unrelated Wage Loss Argument→
Attorney Tashia Rasul, who heads the Construction Defense Practice Group at LOIS, presented a well-received panel discussion at the Claims Litigation Management annual conference in Orlando, Florida this March. The CLM Annual Conference is the premier annual event for professionals in the claims and litigation management industries. The Conference boast more than 2,000 attendees and the featured Premier Panels feature some of the top minds in the industry.
Partner Tashia Rasul exemplifies the client and industry focus that LOIS provides to clients. “We have several bright, young lawyers who have been making valuable contributions to the Firm and to our clients,” Rasul says. “Lois has been a construction industry leader because of our commitment to clients and our dedication to the law. There is a new generation of talent in our firm drawing lots of enthusiasm from our clients and securing a bright future for the firm.”
ln addition to her trial practice, Tashia provides onsite training to her clients on developments in the industry, always keeping them abreast of what to expect in the defense of their claims. In addition to contributing to the Firm as a partner and practice group leader, Tashia also heads the firm’s Diversity Committee, overseeing initiatives for a diverse and inclusive work environment.