Category Archives: New York

IME Watchdog Materials Held Privileged

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).

Trial Win: Lois Partner Christian Sison Prevails on Labor Market Attachment

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

Video: Defining “EMPLOYEE” in New York Workers’ Compensation Claims

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.


Continue reading Video: Defining “EMPLOYEE” in New York Workers’ Compensation Claims

Trial Win: Lois Attorney Andrea Abudayeh Prevails with Unrelated Wage Loss Argument

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

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.

Trial Win: Lack for Medical Evidence in Chronic Inflammatory Response Syndrome Claim

LOIS attorney Joseph Melchionne was successful in getting the court to disallow a claim against our client in a matter in which the claimant alleged that she was bitten by a mosquito while on a work mission trip to Uganda, Africa in 2012, causing her to contract Malaria. The claimant argued that during her work-related trip to Uganda in 2012 and in the seven (7) years since, she has become permanently unable to return to work as a result of contracting Malaria and as a result of the Malaria she has suffered a myriad of co-morbid medical conditions such as Chronic Inflammatory Response Syndrome (CIRS), a brain tumor, postural orthostatic tachycardia syndrome (POTS), and other conditions. After subpoenaing over fifty (50) of the claimant’s treating doctors’ medical records, conducting medical depositions, and cross-examining the claimant at trial, the court found that there was no definitive documentary or medical proof connecting the claimant’s alleged case of Malaria to any of her complaints, and as such, the claim must be disallowed on the basis of insufficient medical causation. The court disallowed the claim in its entirety against the carrier.
Case: KB v. KC;
Court: Manhattan
Lois Attorney: Joseph Melchionne, Esq.