Category Archives: Results

TRIAL WIN: Attorney Karen Vincent Prevails on Dismissal in New Jersey

LOIS attorney Karen Vincent prevailed in the defense of a motion to restore in the New Jersey Workers’ Compensation Court. In that case, where Vincent represented the carrier, the petitioner filed a formal claim petition alleging an accident on June 11, 2016 with significant injuries to the lumbar spine. LOIS filed a Motion to Dismiss for lack of employment arguing that the petitioner was a 1099 independent contractor. Petitioner was unable to oppose the original Motion and instead requested a consensual dismissal without prejudice for lack of prosecution.

Several months later, the petitioner filed a Motion to Restore the claim. LOIS again prepared Opposition to the Motion advising that the petitioner had not provided any new discovery to prove employment.

On July 16, 2019, this case was listed as the Motion to Restore. Petitioner’s attorney requested the Court consider allowing him to withdraw the Motion without prejudice so that he could further investigate employment. However, Attorney Vincent pointed out to the Judge that the case had originally been dismissed for that same reason and that the accident was now three years old.

In light of same, the Judge of Compensation held a hearing on the Motion and attorney Karen Vincent won a dismissal WITH prejudice, which is beneficial to the employer because it means the petitioner can never bring those claims again.

TRIAL WIN: Attorney Andrea Abudayeh Prevails on Attachment in New York

LOIS Attorney Andrea Abudayeh prevailed in a case where the claimant was directed to produce evidence of attachment to the labor market because his doctor conceded a partial disability. Instead, the claimant produced evidence that he underwent authorized surgery a week before the hearing. The claimant also argued that he did not have to look for work as he was still employed by the employer of record. He submitted a letter from the employer allegedly confirming the claimant was employed.

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TRIAL WIN: Attorney Declan Gourley Prevails on Claim Disallowance in New York

LOIS attorney Declan Gourley was successful in getting a low back claim disallowed by the trial judge on August 6, 2019 due to conflicting histories and mechanisms of injury. At trial, through effective cross-examination of the claimant and presentation of employer witnesses, Gourley showed that claimant was terminated for cause and did not notify her employer of a work related injury until after the termination. Additionally, LOIS was able to emphasize numerous discrepancies between the claimant’s testimony, her medical reports and her claim form (C-3). While the claimant insisted notice was provided prior to her termination, the law judge determined there was insufficient evidence that a compensable injury occurred and the reporting of the injury was merely an afterthought following the unrelated termination for cause.

TRIAL WIN: Attorney Joseph Melchionne Prevails In App-Based Employment Defense

LOIS attorney Joseph Melchionne was successful in getting a claim disallowed based upon an argument that no employer/employee relationship existed between a deliver dasher and Door Dash based upon the facts of the claim and the current case law on the issue. The claimant was injured when he was struck by an SUV in New York City while making a delivery on a bicycle through the Door Dash application. The claimant injured his right leg and right ankle and required surgery to repair his fractured ankle. The claim was denied by carrier based upon an argument that the claimant was an independent contractor and not an employee of Door Dash.

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Trial Win: LOIS Construction Practice Leader Successful in Notice Defense

Tashia RasulLOIS Law Firm attorney and Construction Practice Team Partner Tashia Rasul successfully procured a finding from the Board Panel that the Claimant did not timely file his claim and therefore disallowed the claim. After a victory at the trial level, Tashia fashioned a legal argument for the Board Panel that both discredited the Claimant and barred the claim – a trademark technique of hers that she has executed time and again to deliver results for her clients. At trial, the Claimant testified that while he was allegedly en route to purchase work supplies in his own personal vehicle, he was rear-ended. After the alleged accident, he never filed a form regarding the accident, never lost time from work, and the employer had no reason to know whether there was an accident. The employer-witnesses testified that employees were not authorized to retrieve work supplies themselves. Tashia argued successfully that the Claimant was not a credible witness and that because the Claimant failed to file within 30 days of the accident, the claim is prejudicial to the employer and should be barred. Continue reading Trial Win: LOIS Construction Practice Leader Successful in Notice Defense

TRIAL WIN: Attorney Joseph Melchionne Prevails on Jurisdictional Defense

Attorney Joseph Melchionne was successful in getting a claim disallowed based upon an argument that New York State was not the proper jurisdiction for which to bring the claim. The claimant is a 76-year-old delivery driver for an Italian restaurant located in Mahwah, New Jersey.  The claimant alleged that while making a delivery to a customer in New York State he was injured when he went to descend a flight of stairs and fell due to poor lighting injuring his head, neck, left hand, mouth, and teeth. As a result of the accident, the claimant spent nine (9) days in the hospital and underwent a cervical spine surgery and treated for significant injuries to his left hand. The claimant filed the claim in New York. The claim was denied by the carrier based upon an argument that New York was not the proper jurisdiction for the claim. 

At trial, the claimant testified that he resided in Mahwah, New Jersey and worked at the Italian restaurant located in New Jersey and as a crossing guard for the Borough of Ramsay, New Jersey. At the restaurant the claimant was a delivery person and he assembled pizza boxes part time. The claimant testified that  he was hired at the restaurant in New Jersey, the terms of his employment with the company were negotiated at the restaurant in New Jersey and he was paid weekly by check from the company from a bank in New Jersey. The claimant also testified that he cashed his checks at his bank in New Jersey. The claimant testified that he used his own car to make deliveries which was insured under New Jersey law.  The claimant testified that the restaurant is located 100 yards from the New York State line and about 50% of his deliveries were made in New York for towns such as Suffern, Tuxedo, and Nanuet. The claimant testified that on the evening of the subject accident he was making a delivery to Suffern, New York at around 8:00 in the evening when after making the delivery he fell down a flight of steps injuring his head, neck, left hand, mouth, and teeth. 

Following the claimant’s testimony, Attorney Joseph Melchionne argued that based upon the testimony produced at the trial and pursuant to the case law on the issue, New York State was not the proper jurisdiction for the claim.  As such, we argued that that the claim should be disallowed in its entirety. With respect to the issue of subject matter jurisdiction, we argued in summation that the case law has held that, factors which have been examined to make a determination as to whether or not the New York Workers’ Compensation Board has subject matter jurisdiction include: Where the claimant resides; where the claimant was injured; where and how the claimant was hired; whether the claimant was paid wages from a New York Bank; where the employment contract was negotiated; whether the claimant was paid to travel to and from another state and New York; whether the claimant’s schedule was negotiated in New York and whether the claimant worked at a fixed location outside of the state of New York.  Next, we argued that the claimant testified that he lives in New Jersey, his concurrent employment was in New Jersey, the restaurant is located in New Jersey, he worked for the restaurant assembling pizza boxes in New Jersey, made 50% of his deliveries in New Jersey, used his own car which was insured in New Jersey to make his deliveries, was paid in New Jersey, his checks were issued and cashed at New Jersey banks, he was hired in New Jersey, and he negotiated the terms of  his employment in New Jersey and as such, the factors weigh in favor of New Jersey being the proper jurisdiction for the claim and, as a result, the claim should be disallowed.

The law judge was persuaded by our arguments and determined that New York State was not proper jurisdiction to bring the claim, and as such, the claim was disallowed in its entirety.