In a case involving a major national retailer, LOIS attorney Rhey Duque was successful in having a claim disallowed by the trial judge on 5/2/19 after cross-examination of the claimant by Duque. This was despite the defense IME conceding causal relationship. The claimant was employed by a retail store in a mall and alleged a fall in the mall parking lot close to an entrance to the mall. Mr. Duque was able to show that the accident was not compensable as claimant fell in the a mall parking lot and there were no special hazards that the general public was not also exposed to. While the claimant attempted to argue that she parked in close proximity to her employer’s location and was walking to an employee entrance, Mr. Duque obtained favorable testimony that the claimant was not directed by the employer as to where she must park her vehicle and conceded the employee entrance was inside the mall and she had not yet entered the mall’s entrance which was also used by the general public. This win was a direct result of Mr. Duque’s aggressive cross-examination that brought to light the key facts necessary to support disallowance of the claim.
LOIS Law Firm attorney and Construction Practice Team Partner Tashia Rasul successfully won a judgment of Section 114-a fraud before a New York Workers’ Compensation Law Judge. After covert surveillance captured the Claimant performing activities that contradicted what he represented to his doctors and what he previously testified to under oath, Tashia presented that the Claimant was making material misrepresentations to the Court in order to receive Workers’ Compensation benefits. Continue reading Trial Win: Partner Tashia Rasul Wins Reimbursement for Employer After Claimant Testifies Fraudulently
In a controverted occupational disease claim where the claimant worked for three separate employers contemporaneously with the alleged disability, and depending on the setting of the date of disablement, either of the three employers could have been found to be the liable party. Adding more difficulty to the defense, our client was actually the last employer for whom the claimant worked. Generally, with occupational disease claims, the last employer is deemed liable, as the date of disablement can be set when the claimant stopped working. Moreover, the first medical reports were filed after the claimant began working for our insured. However, based on testimony taken from multiple employer witnesses as well as the claimant, we successfully argued that because of the claimant’s changed job duties when she began working for our insured (i.e. they were less strenuous), it should be a different employer that should be liable and the date of disablement should be set as the date prior to when the claimant began working for our insured. The Law Judge agreed, and set the date of disablement two days prior to when the claimant began working for our insured, placing liable on a different party. While the claim was established, our client was not deemed liable.
Case: TD v. FSH
Court: Brooklyn Workers’ Compensation Board
Trial Attorney: Noah Pollack, Esq.
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
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
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.
Lois Attorney: Jeremy Janis, Esq.