On March 25, 2019 the New York State Workers’ Compensation Board will complete its technology upgrade to all workers’ compensation courts throughout the state. This transition to mandatory, statewide virtual hearings caps off a year-long project by the Board to roll out virtual hearings across the State and make attorney check in through the virtual hearing system a requirement across the entire system. Lois Attorneys Christian Sison and Managing Partner Greg Lois discuss what this means for employers and carriers.
In a case decided March 18, 2019 the allegations of neck and back injury were disallowed despite two separate IME reports conceding causation. Although the case was established for schedulable sites pursuant to §21 despite “vast inconsistencies” in the claimant’s case – this win was the direct result of seeking to cross-examine the claimant’s physician immediately at the pre-hearing conference, and not waiting to “see what the IME says” (which is a common practice).
Case: TM v. SPC;
Lois Attorney: Timothy Kane, Esq.
Neck and back claim disallowed by the trial judge on March 18, 2019 as there was no causal relationship between the alleged injuries and the claimant’s work duties, due to the lack of distinctive features of her job duties which would have caused a repetitive stress injury. Likewise, there were no distinctive job duties described in her doctor’s testimony, and it was noted that the injuries could be degenerative in nature. Notably, the IME of the defense expert conceded neck and back repetitive trauma injuries.
Case: CS v. BGNRC; New York Workers’ Compensation Board
Lois Trial Attorney: Timothy Kane, Esq.
On March 15, 2019 LOIS attorney Joseph Melchionne was successful in obtaining a favorable Reserved Decision determining that the carrier does not have a legal obligation to provide the claimant and the court with covert video surveillance reports during litigation of fraud under WCL Section 114(a). At trial, Melchionne argued that the claimant violated Section 114(a) and committed fraud because covert video surveillance was obtained that revealed the claimant performing masonry work while maintaining to his doctors that he was unable to even perform the simplest activities of daily living. The claimant’s material representations to his doctors compelled his treating physicians to issue medical reports opining that the claimant was totally disabled. In this case, the court determined that the claimant’s conduct was so egregious that not only was it determined that the claimant was ineligible to receive indemnity benefits for prior periods of lost time, but the court also utilized the discretionary penalty to disqualify the claimant from receiving any future indemnity benefits.
Case: SO v. WCC;
Lois Attorney: Joseph Melchionne, Esq.
In this complex occupational disease claim arising from the claimant’s work in construction, we were successful in defending the claim against our client (who held a wrap-up policy) before the New York Workers’ Compensation Board and arguing for liability to be imposed on a different employer/carrier. The claimant had worked for several different employers in the period leading up to his work stoppage and three different carriers, including our client, we placed on notice regarding potential liability. We took extensive testimony of the claimant and subpoenaed copious medical records before the Law Judge found our client was not liable on the claim. Our argument was two-pronged: 1) that our client was not the employer during the last injurious exposure; 2) that as the holder of a wrap-up policy, our client should not be found liable on an occupational disease claim, which should impose liability on the holder of the operational policy.
Case: AB v. OCIP Client;
Lois Attorney: Noah Pollack, Esq.
Lois obtained a trial win disallowing a claim for post-concussion syndrome and memory loss was affirmed by the Board Panel. After an independent medical examination disputed causal relationship, Partner Christian Sison cross-examined the treating doctor, securing valuable concessions. The treating doctor ultimately admitted that diagnostic testing were not correlative with the claimant’s subjective complaints.
At trial, the Law Judge sided with the defense’s arguments. The claimant appealed to the Board Panel and Full Board, but was denied on both occasions. After reviewing briefs from both sides, the Board Panel ruled that the claimant did not present sufficient or accurate evidence to warrant a reopening of the claim and penalized the claimant’s new attorneys for instituting a proceeding without reasonable ground, pursuant to New York Workers’ Compensation Law, Section 114-a(3).
Case: CD v. SLAM;
Lois Attorney: Christian Sison, Esq.