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Appeal Win: Team Approach Pays Off

This June, we received a major victory on a Board Panel review that required a lot of detail work and persistence over several months, and it paid off.

The claimant alleged that in October of 2018, a one pound shower rod fell on her upper shoulder and neck while she was working as a housekeeper at a New York hotel. She alleged, initially, that this shower curtain injured her head, neck, both shoulders, and back. She alleged that the shower curtain striking her neck caused her to become so dizzy that she needed to sit on the floor until security and an engineer arrived.

We did extensive research on FMLA and disability issues and our paralegal working with him on the file sent out numerous subpoenas for some of those records, which began to illuminate some of the medical history.

As it turned out, the claimant had treatment through early 2018, including an MRI showing degenerative disc disease and multi-level Diffuse Idiopathic Skeletal Hyperostosis. She had also applied for FMLA benefits for a period of six months that would have extended to the date of the reported accident. The claimant had also applied for disability benefits for pelvic pain and for a lower back injury in 2018. Our office was not privy to all of the FMLA and medical records, but it was clear that the claimant had an extensive history of complaints and medical attention to some of the sites reported as a “new accident.” She also underwent numerous surgeries before and after the accident, including a right shoulder surgery and a colonoscopy. The claimant also had a history payments and benefits through other means. In fact, a medical report returned contained the history, “she will see if she can convert this to workers’ compensation. She is currently on disability but apparently has run out.”

Upon cross-examination, the claimant directly contradicted herself. The claimant had conceded numerous elements of a history on cross-examination that had not been revealed to the IME. The claimant testified both to never having treatments to the neck or back before the October 2018 accident, and to treating for the neck for 10 years prior. 

Our paralegal suggested a more recent ISO report, which uncovered new information. Our paralegal also repeatedly followed up with claimant’s counsel for HIPAA releases from the claimant to facilitate the process of obtaining further records via subpoena. We then filed written summations following the deposition of our IME, wherein we were able to supply the Board with even more information.

The Board Panel noted that the post-accident MRI was substantially similar to the MRI from April 2018, six months prior to this accident, and as a part of her FMLA claim. Even though the Board panel accepted that the unwitnessed accident it also found the claimant was so intensely incredible as to her history, that, in turn, every treating doctor and the IME’s reports could not be relied upon.

The claim was disallowed for the neck and back that had been established at the hearing, all disputed medical bills were found in the carrier’s favor, and the claim is now closed.

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Learn More About New York Workers’ Compensation Defense at LOIS

We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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