The Claimant was a delivery man in his position for over thirty years. Over the course of those thirty years, the Claimant filed over ten claims against the same employer, most of which were established. Among those claims were acute injuries to both knees, which resulted in surgery for the right knee in the 1990s. The Claimant received SLU awards to both knees when the Claimant was at MMI.
Despite the prior acute injuries to both knees, the Claimant filed a new claim in 2020, first alleging an acute injury and later alleging repetitive use injuries to both knees developed over the course of his employment as a delivery person. He completed a C-3.0 and failed to disclose the prior treatment to either knee. Further, he failed to tell his treating doctor about the prior injury to either knee or provide any prior records from the prior claims, which included MRIs and surgical reports. After successfully obtaining numerous postponements, PFME was found for occupational injuries to both knees and the claim was set for trial. LOIS attorney, Jeremy Janis, raised WCL 114-a, given the Claimant’s failure to disclose the prior injuries and the claim was set for both medical and lay witness testimony.
During cross-examination of the treating doctor, he conceded that he was never advised of the prior injury to either knee, was not provided any MRIs or a surgical report in relation to the prior claim. He conceded that the findings in the Claimant’s recent MRIs were not compared to the prior MRIs and that the findings in the recent MRIs were degenerative. Further, he compared the Claimant’s job duties as a delivery man to that of a construction worker and did not know the Claimant’s specific job duties or how much he lifted.
These concessions formed the basis of our argument, which cited a very recent Third Department case, Matter of Yearwood v. Long Island University, 210 A.D.3d 1256 (N.Y. App. Div. 2022), a case in which the Court affirmed a finding by the Board found by failing to disclose treatment history to the treatment provider, the IME physician or the Board, the Claimant failed to satisfy the burden of submitting credible medical evidence demonstrating a causal connection between the proffered conditions and the current employment. The Court found the medical opinion insufficient where it finds that they were not based upon an understanding of the Claimant’s relevant medical treatment history. We argued that the recent case applied to the facts in the current case and the Law Judge agreed. The Law Judge specifically cited the doctor’s lack of knowledge about the Claimant’s prior injuries and that the recent MRIs were not compared to the older MRIs. As a result of the disallowance, the Carrier is not responsible for the total knee replacements the Claimant requested, avoiding a minimum SLU finding of 35% for each leg.
