LOIS Attorney Bailey Ott recently secured a favorable Board Panel Decision, which affirmed a trial win in which the claimant had been found to have no disability and no permanency to the neck and back, as well as 0% SLUs for the right arm, right hand, right leg, left foot, and right foot. This case had a very high potential exposure based on the amount of injuries the claimant had sustained, but we were able to secure a finding of no permanent injuries to any of the established sites. This case was established for injuries to the bilateral knees, left hip, neck, back, right elbow, right wrist, right hip, and bilateral ankles.
Claimant’s treating physician submitted a C-4.3 finding the following SLUs: 76% left hip, 60.8% right hip, 47.5% left knee, 20% right knee, 27.5% right hand, 7.5% right elbow. In an attachment, he assessed a 22.5% SLU for the right foot. The doctor then issued an apportionment opinion for the SLUs: for the right hand he apportioned 30% to the 2016 accident and 70% to 2018; for the right elbow he apportioned 40% to 2016 and 60% to 2018; for the right hip he apportioned 40% to the 2012 accident and 60% to 2018; for the left hip he apportioned 60% to the 2012 accident and 40% to 2018; for the right knee he apportioned 20% to 2012 and 80% to 2018; for the right foot he apportioned 45% to 2012 and 55% to 2018. In the claimant’s 2012 claim, the doctor’s C-4.3 assessed a SLU of 60% for each hip and 25% for the right foot. In his C-4.3 from February of 2017, he assessed a SLU of 60% for the left hip, 73% for the right hip and 25% for the right foot. In the 2012 claim, the claimant was awarded SLUs of 55% for the right leg, 12.5% for the left leg, and 12.5% for the right foot. In the 2016 claim, the doctor’s C-4.3 assessed a SLU of 50% for the right shoulder, 12.5% for the right elbow (62.5% total for the right arm), 40% for the left shoulder, and 45% for the right wrist. In the 2016 claim, the claimant was awarded SLUs of 12.5% for the right arm, 7.5% for the right hand, and 7.5% for the left arm. Therefore, we determined an IME cover letter would be necessary to combat these high SLU findings and to attack the treating physician’s credibility, using targeted questions that highlighted discrepancies in the treating physician’s reports.
Continue reading RESULTS: Attorney Bailey Ott Wins at Trial, Affirmed on Appeal
Lois Law Firm Construction Practice Team Leader, Tashia Rasul, successfully won a judgment of Section 114-a fraud at the Board Panel level after the workers’ compensation Law Judge found no fraud and noted that the carrier’s application for a fraud finding was borderline frivolous. This fraud finding was not based on the usage of covert surveillance, but instead on documentary evidence provided by the claimant himself, his testimony, and his statements to his doctors and the IME doctors, that were fully contradicted by records of treatment from prior to the date of loss.
One of the body parts established in this claim is the neck. The claimant failed to include any prior neck treatment on his C-3 and C-3.3, and when he initially testified regarding prior injuries, he stated that he did not receive prior neck treatment, even though he did have a prior injury to it “a while ago”. The claimant proceeded to treat for his neck post-loss, neglecting to tell all of his doctors about the prior injury, and refusing to fill out the IME questionnaires or telling the IME doctors it. Of course, this led to the doctors finding the treatment he needed is causally-related to the subject accident. In addition, the claimant did reveal to some of his doctors and the IME doctors that he sustained prior injuries to other body parts, but never mentioned the neck.
To prove fraud, Tashia developed the record by utilizing the client’s investigation showing prior treatment and subpoenaing the claimant’s prior records, taking the claimant’s testimony on prior injuries, examining the claimant’s post-loss treatment records and IMEs, and taking the doctors’ deposition on what exactly the claimant disclosed to them and whether knowledge of the prior injury would have changed their treatment course. The pursuit of fraud required digging into the claimant’s past medical history, which is oftentimes overlooked, as well as a scrupulous understanding and synthesis of the record, which Tashia used as a basis for her fraud arguments.
Continue reading RESULTS: Attorney Tashia Rasul Wins Fraud Finding
Construction Defense Team Associate Jonathan Mallozzi successfully obtained a fraud ruling (“114-a finding”) favorable to the employer due to the claimant’s concealment of prior medical treatment. The Court ruled that the claimant had committed fraud and imposed a penalty of no further indemnity benefits as a result.
This claim was established for the right shoulder, right calf, right elbow, neck, left shoulder, right wrist, and lower back. In his C-3 dated February 25, 2019, the claimant alleged that when he was taking equipment downstairs, he tripped over a garbage bag that was left on the stairs and fell down the stairs. The claimant testified that he was only ever involved in one motor vehicle accident involving a parked car. However, through thorough investigation, records were discovered for an accident where the claimant was struck by a reversing vehicle while crossing the street. It was also discovered that the claimant underwent comprehensive treatment in connection with this prior claim. However, he failed to disclose it when he testified in this claim.
After extensive development of the record utilizing these prior records, cross-examination of the claimant, and arguments made by Jonathan that the claimant made a material misrepresentation by failing to disclose this prior accident and treatment, the Law Judge found fraud under WCL Section 114-A. The Law Judge reasoned that the claimant did not reveal prior treatment when asked about it under oath or to any treating or IME physician, and this is material as the treatment involved body parts that were allegedly injured in the instant claim.
This finding of fraud was a tremendous cost-savings win for the client, as it curbed indemnity exposure in a claim that could have potentially ended with a high LWEC finding.
Continue reading RESULTS: Attorney Jonathan Mallozzi Proves Claimant’s Fraud
LOIS attorney Joseph Melchionne was successful in obtaining a judicial finding that newly raised body parts were time-barred under WCL Section 28, and thus disallowed from the claim. The claim was established for the claimant’s work-related injuries to his low back and for consequential depression in relation to a 2017 work accident. In November of 2019, two years and eight months after the establishment of the claim, the claimant produced a medical report diagnosing traumatic injuries to his bilateral shoulders and bilateral wrists. In 2020, the claimant raised those injuries and a law judge determined that the report constituted prima facie medical evidence (PFME) for those injuries. As such, Mr. Melchionne argued that the newly raised injuries were time-barred under WCL Section 28 and reserved the right to cross-examine the claimant on that issue.
At a recent hearing Mr. Melchionne took the claimant’s testimony regarding his treatment for his shoulders and wrists, specifically, his delay in treating for those alleged injuries and a lack of medical evidence reporting that he complained of those injuries for the first two years and eight months of the claim. During his testimony the claimant seemingly also raised his neck as a causally related injury. Following the claimant’s testimony, the attorneys were allowed to make summation arguments. Mr. Melchionne argued that the medical and testimonial evidence produced to the record clearly evinced that the claimant should be time-barred under Section 28 from proceeding with any additional claimed injuries because none of his newly raised injuries were listed in his C-3 Employee Claim Form, none of the hundreds of medical reports filed between January 2017 and November 2019 contain even the mention of any symptoms to the shoulders or wrists, the claimant’s medical evidence did not indicate that the claimant’s symptoms were raised as consequential injuries, and the claimant’s testimony was inconsistent and not credible regarding when his symptoms began and if he informed his treating doctors of same.
Continue reading RESULTS: Attorney Joseph Melchionne Wins on Statute of Limitations
LOIS Attorney Bailey Ott was recently able to successfully have a bilateral carpal tunnel/wrists claim disallowed at the Pre-Hearing Conference as being time-barred. The claimant alleged injuries due to repetitive use of her hands. Her initial medical records she submitted to the Board were from August 10, 2015 and noted that the claimant had onset of carpal tunnel syndrome two months prior from overuse. On the date of the Pre-Hearing Conference Claimant’s counsel uploaded a medical report from a June 9th examination. In that medical report it was noted that the claimant had “been experiencing this since approximately 2015 while working as a program director performing repetitive activities such as excessive typing, lifting, pushing, pulling, cleaning, et cetera.” Further, in the doctor’s treatment plain he noted, “I would strongly recommend inclusion/establishment of bilateral hand/wrists due to repetitive mechanism/occupational disease due to activities performed at work as of 2015 as described.” We vehemently argued that this was proof that the claimant knew or shoulder have known that she had developed this condition as a result of her work in 2015, which was supported by the three medical reports in the Board File from 2015.
The Law Judge agreed with our position and disallowed the claim as it was time-barred. He noted that it was clear that the claimant had been experiencing these symptoms since 2015. He pointed out that the key phrase in the medical report was “while working as a program director performing repetitive activities.” The Law Judge explained that for an ODNCR claim to stand, it must be made within two years from the time the claimant was first diagnosed, or should have known that the symptoms or injury were causally related to a work related activity, which in this case the claimant clearly did know. The Law Judge disallowed the claim citing our argument that the latest the claim could have been brought was 2017, which was now three years too late.
Continue reading RESULTS: Attorney Bailey Ott Wins Bilateral CTS Claim
Construction Defense Team Associate Jonathan Mallozzi successfully argued to the Board Panel that the claimant was outside the scope of her employment and not subject to any special hazard when her accident occurred, and obtained a disallowance of the claim.
This claim involved an alleged work-related accident that took place on October 2, 2019. The claimant alleged that she was struck by a New York Sanitation van approximately 20 feet from her work location. The vehicle was backing down the block and allegedly struck the claimant on her right side, causing an injury to her right upper arm. The claimant conceded on her C-3 that the accident occurred on her lunch break. At trial, and after a through cross-examination of the claimant and the testimony of an employer witness, the Law Judge agreed that the claimant was on a public street during her lunch break and not subject to any special hazard that was not shared by the general public. As the claimant was on a public street and on her lunch break, the employer was found not liable and the claim was disallowed in its entirety.
Continue reading RESULTS: Attorney Jonathan Mallozzi Wins “Special Hazard” Case