All posts by Jeremy Janis

Jeremy Janis is an associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. He regularly handles trials and hearings and has extensive experience deposing medical professionals and other experts and advising on all aspects of workers’ compensation law. He can be reached directly at jjanis@loisllc.com or 201-880-7213.

Trial Win: Medical Evidence Challenge at Pre-Hearing Conference Results in Case Dismissal

Our office recently won a trial in which the claimant, a delivery driver, alleged she was putting up a metal rack and boxes in her truck, when the rack and boxes allegedly fell on her, causing injuries to her back, chest, right shoulder and right ankle.   By winning the trial, the claim was disallowed! The disallowance was affirmed by the Board Panel.

In this claim, the claimant alleged numerous injuries, including her back, chest, right shoulder and right ankle.   However, the initial hospital records only showed that the claimant presented complaints to her left breast until the time of her release, a week after the alleged accident. The claimant began treating with a chiropractor a week later; however, no mention of a work-related injury was made.   Further, the claimant provided numerous physical therapy report which provided diagnoses of injuries to the other sites. Further, we learned from the employer that the claimant had treated with her primary care physician on the date of alleged accident, at which time she had a fever.

The disallowance was secured by using the Pre-Hearing Conference strategically.  At the initial hearing, we requested the name of the PCP and requested that the claimant provide them before a PFME finding was made.  Based on the claimant’s disclosure, we were able to obtain records that showed the claimant had a fever and infection to her left breast prior to the date of the accident. Further, the claimant made no mention of the work accident to the PCP.  At the second Pre-Hearing Conference, we were able to limit the PFME finding to only the left breast, after vigorously arguing that there was not sufficient PFME for the other sites.

In so doing, the issue became limited to the left breast.  Given the subpoena response, we knew the claimant’s fever and infection was present before her treatment with the PCP.  During cross-examination, we elicited testimony from the doctor in which he stated he was not aware that the fever was present on the date of accident and had not reviewed the PCP’s report. He was therefore found not to be credible.  Based on the doctor’s testimony alone, the Law Judge found that there was no indication of an occupational injury in the initial report on the date of accident.   The Judge therefore found that there was no occupational injury and specifically noted that the claim is deemed to an afterthought. The claim was disallowed. This finding was confirmed by the Board Panel.

In this case, we were successful in limiting the issue at trial by carefully reviewing the medical records, aggressively arguing for the exclusion of the additional sites and eliciting favorable testimony from both of the claimant’s doctors. As a result, the claim was disallowed.

Case:
Court: Jamaica
Lois Attorney: Jeremy Janis, Esq.

Raising Fraud: No Prior Disclosure Needed for Social Media Posts in New York

What happens when the carrier provides publicly available social media evidence as a basis for fraud and the claimant subsequently makes the social media posts private?  LOIS was recently successful in arguing that prior disclosure of social media evidence obtained by the employer is not required and that an employer/carrier can introduce “private” social media evidence into the case and using it to cross-examine the claimant. Continue reading Raising Fraud: No Prior Disclosure Needed for Social Media Posts in New York

How To: Challenging Additional Body Parts In New York

Jeremy Janis
It’s a common problem for employers and carrier in New York workers’ compensation claims: the injured worker gets medical attention and treatment for a specific body part. When they are ready to return to work from that injury, they allege a “consequential” loss – injury to another body part that needs treatment – and remain out of work. We were recently successful in defending against additional sites being added to an accepted claim.  In our case the Board Panel ruled that additional injuries to the neck and back were not causally related to a work-related accident because the claimant did not have contemporaneous documentation of complaints to the neck and back at the time of loss. Here are the facts of our case and practical tips for challenging consequential loss in New York. Continue reading How To: Challenging Additional Body Parts In New York

Appellate Division Rules Misrepresentations by the Claimant to an IME Is Sufficient for Fraud Finding

In New York, pursuant to Workers’ Compensation Law § 114-a (1), a claimant may be disqualified from receiving workers’ compensation benefits “[i]f for the purpose of obtaining compensation . . . or for the purpose of influencing any determination regarding any such payment, [he or she] knowingly makes a false statement or representation as to a material fact.”    A fact is “material” if it is “significant or essential to the issue or matter at hand,” and it need not be demonstrated here that claimant received compensation to which he was not otherwise entitled or that he did not sustain a compensable injury (Matter of Losurdo v Asbestos Free, 1 NY3d 258, 265 [2003].

Jeremy Janis
Jeremy janis, Esq.

Recently the Third Department of the New York Appellate Division entertained an appeal in which the claimant was disqualified from receiving future benefits and forced to pay back past benefits as a result of violating Workers’ Compensation Law § 114-a, therefore committing fraud.  The case, Matter of Poupore v Clinton County Highway Dept. 2016 NY Slip Op 03037 was decided on April 21, 2016.  In this case, the penalty imposed by the Law Judge and the Board Panel was upheld on appeal.

Continue reading Appellate Division Rules Misrepresentations by the Claimant to an IME Is Sufficient for Fraud Finding

Medical Portal to Enable Electronic Submission of Variance Requests

Jeremy Janis, Esq.
Jeremy Janis, Esq.

The New York Workers’ Compensation Board announced the creation of a Medical Portal to enable electronic submission of C-4AUTH, MG-1 and MG-2 authorization requests. The portal will provide users with real time status of requests and send a notification when a status changes.   The Board claims that users will no longer need to know which form to complete when submitting a request and the portal’s user interface will ask the user questions, the answers will determine the correct path and type of treatment authorization request.

Use of the portal is not required

Health care providers may continue to submit requests using the paper forms, if they choose. It is anticipated, however, that electronic submission will make the approval process faster, reduce errors, improve data quality, and eliminate the need to submit paper authorization forms. Additionally, if a health care provider submits a treatment authorization request electronically, the payer will be required to respond to the request electronically.  If the medical provider submits a paper form, the payer must respond in kind via paper submission.

Continue reading Medical Portal to Enable Electronic Submission of Variance Requests

Opioid Weaning Programs under the New York Non-Acute Pain Medical Treatment Guidelines

The use of opioids is widespread in the treatment of numerous injuries in New York.  Although prescribed by a number of doctors, great care must be taken when opioids are found to no longer be necessary.  Recently, Judges have ordered both the carrier and the claimant to submit drug weaning programs when an IME doctor finds that the use of opioid drugs is no longer necessary for the claimant’s continued treatment.

What is a Drug Weaning Program and Why is It Necessary?

In New York Workers Compensation claims the use of opioids by the claimant is subject to the 2014 Non-Acute Pain Medical Treatment Guidelines (“MTG”) recommendations in section F.2.b, Long Term

Jeremy Janis
Jeremy janis, Esq.

Use of Opioids: Transitioning/Managing Patients on Existing Opioid Therapy. The claimant’s physician must abide by the MTG recommendations to ensure that the management and treatment of a patient with non-acute pain is performed according to the principles for safe long-term opioid management and guidelines for optimizing opioid care pain (F.2.c [F.2.c.i-F.2.c.ii] and F.3 [F.3.a, F.3.b.i-iv, F.3.b.c.i-ii, F.3.d.i-iv, F.3.e.i-vi]).

Some of the MTG recommendations include: the need to routinely monitor the safety and effectiveness of treatment (improved function and pain control), an informed consent form (F.3.c), opioid understanding form (F.3.c.ii), appropriate monitoring and screening (random urine drug testing (F.3.d.i-iv), unannounced pill count(s), and evaluation and monitoring   for adverse effects of and interactions with medications (F.3.b.i-ii and Table 3: Adverse Effects of Opioids). Continue reading Opioid Weaning Programs under the New York Non-Acute Pain Medical Treatment Guidelines