News & Articles

LOIS Partner Declan Gourley prevailed in a permanency trial in a New York Workers’ Compensation case, having a Claimant be found to have 0% Loss of Wage-Earning Capacity (LWEC) and no Schedule Loss of Use (SLU) of the right arm/shoulder. The Claimant reached maximum medical improvement for the established neck and right shoulder injuries. An Independent Medical Examiner (IME) had found the Claimant to have a 0% SLU of the right arm/shoulder and Class 2, Severity A of the neck. The Claimant’s treating physician had found a 20% SLU of the right arm/shoulder with a Class 2, Severity A of the neck. At the time of classification, the Claimant was working for the same employer, but in a different role. The Claimant requested for a finding of 15% LWEC and 20% SLU of the right arm. Attorney Gourley cross-examined the Claimant regarding functional and vocational skills to demonstrate the Claimant had previously obtained a bachelor’s degree and had worked in multiple less physical jobs which his skills were transferable. The Claimant conceded that while he was working in a different role post-accident for the employer that the reason for the role change was not causally related to the work accident or his injuries. Through effective cross-examination of the treating physician, Attorney Gourley undermined the credibility and findings at permanency of the treating physician especially with regards to the finding of a 20% SLU of the right arm/shoulder. The treating physician conceded that the Claimant had normal range of motion findings at five examinations prior to his examination when permanency was assessed and further conceded that the Claimant had not treated prior to his permanency examination in approximately one year and for this reason the IME was found more credible. As such, there was no permanency award to the Claimant, and future monetary exposure was severed.

LOIS Partner Joseph Melchionne secured a victory for his client and defended the Carrier’s due process rights in a New York Workers’ Compensation case. The Claimant in this case provided testimony during a compensability trial to develop the record on all issues, including proper employer. Following the Claimant’s testimony – and before the presentation of the Carrier’s lay witnesses to rebut the Claimant’s testimony – the Law Judge indicated that he would issue a written Reserved Decision outlining which party was liable for the claim. Melchionne argued that the Carrier reserved the right to present three (3) employer witnesses to rebut the Claimant’s testimony and that the Carrier has the affirmative right to present the witnesses. In response, the Law Judge held that a compensable accident occurred based solely upon the Claimant’s testimony. Melchionne then argued that failing to continue the matter to permit the presentation of the witnesses was a due process violation. Following an appeal, the Board Panel agreed with Melchionne’s position: “Upon review of the record, the Board Panel finds that the finding of a ‘compensable accident’ is premature at this time and is rescinded…The Board Panel finds that [the Carrier] should be afforded due process in being able to present its witnesses on the issue of whether an accident occurred on February 21 ,2023, in the first instance before a determination is made by the Law Judge.” Bay maintaining that the Carrier is afforded a right to due process, Melchionne created a record so as to affirm that the Carrier is able to present its witnesses before a Law Judge can issue a decision on compensability.

LOIS Senior Associate Olivia Barna obtained a disallowance in a New York Workers’ Compensation occupational disease claim. The Claimant alleged bilateral carpal tunnel syndrome and injuries to both wrists after repetitive use due to his job duties. Despite Barna’s development of the record, the Law Judge established the occupational disease claim for bilateral carpel tunnel syndrome and to the bilateral wrists. Barna appealed, arguing that the Claimant’s doctor did not have a sufficient history of the Claimant’s job duties and therefore could not provide an adequate opinion on causal relationship. The Board Panel agreed, adopting Barna’s arguments: “The Board Panel finds that [the Claimant’s treating physician] did not possess adequate knowledge to opine on the issue of causal relationship, since his testimony conceded he [was] unaware what heavy objects the Claimant lifted or how much he lifted, or how much of the day he spent lifting objects, only that he drove a truck…We therefore find that the non-specific description of Claimant’s work activities and the failure to set forth credible evidence of the necessary recognizable link…compels the disallowance of the claim.” As a result, no medical treatment and no indemnity award will follow, eliminating the client’s exposure.

LOIS Partner Christian Sison and LOIS Paralegal Taylor Rodriguez were successful in obtaining a fraud finding after a lengthy set of trials in a New York Workers’ Compensation case. The Claimant was a hotel housekeeper that requested wage replacement benefits after having worked for a long period of time. Given that the requested benefits coincided with the start of the 2023 summer season, covert surveillance was initiated.

LOIS Associate Hannah Bacon and Paralegal Loriana Diaz obtained a total disallowance in a New York Workers’ Compensation claim pertaining to an alleged orthopedic injury by impugning the Claimant’s credibility and successfully arguing that there was no timely notice, no compensable accident, and no causal relationship between any injuries and employment.

LOIS Associate Attorney Kristine Rosales won a contentious trial on the issue of permanency in a New York Workers’ Compensation case involving a right shoulder claim. The Claimant’s treating doctor assessed a 30% SLU, while Carrier’s consultant opined 8%. Due to the differing opinions on SLU between the two doctors, depositions ensued. Attorney Rosales pressured the treating doctor on cross-examination and asked him to explain how he found a 20-degree substantial difference on Claimant’s extension from his last examination compared to his permanency report; the two examinations, after all, were performed only a few months apart.

LOIS Associate Attorney Brian Mooney secured a disallowance of an occupational disease claim due to repetitive use of the hands. In this case, the Claimant alleged bilateral carpal tunnel syndrome and ulnar nerve entrapment from working for approximately two weeks at a grocery store. The Claimant alleged that his duties, which consisted of stocking and operating a cash register, led to the development of his condition. Mooney contested the claim from the outset and ordered a battery of investigations, including a social media canvass and covert surveillance.

LOIS Senior Associate Matthew Schrieks and Paralegal Kayla Lisa recently secured a WCL Section 114-a violation and disallowance of claim pursuant to security video evidence secured of the underlying accident. The Claimant alleged injuries to his neck, back, bilateral knees, and left ankle as a result of being struck by a car while working as a valet driver. With the help of security video evidence obtained from the employer, Schrieks was successful in arguing that the Claimant’s description of the accident was categorically refuted by the video evidence and the alleged injuries could not have occurred as a result of the “accident.”