LOIS Associate Natalie Caron and Paralegal Andrew Minchella successfully secured a full disallowance of a controverted New York Workers’ Compensation construction claim following a trial. The Claimant alleged that he injured his neck, back, right knee, right ankle, and became unconscious due to a fall off a ladder on a construction site. Attorney Caron was able to secure the disallowance from thorough preparation and an aggressive cross-examination. The Claimant admittedly had been terminated prior to the alleged date of accident, along with his co-worker (and brother), based on information uncovered by the employer that the brothers were conspiring to file false Workers’ Compensation claims and personal injury claims per Section 240 of the New York Labor Law, also known as the “Scaffold Law.” Of significance, prior to trial, the Carrier had been precluded from producing certain documentary evidence pursuant to 12 NYCRR 300.38.
At trial, Attorney Caron was able to undermine the credibility of the Claimant during cross-examination, which uncovered multiple inconsistencies in the Claimant’s story. The Claimant testified he was on-site and working at the time of the accident when a step ladder broke, causing him to fall backwards and become unconscious after landing on metal pipes. The Claimant then testified that he was paid for work on the date the accident occurred and alleged he could not remember how he was taken to the hospital. Attorney Caron then introduced into evidence a medical report from the Claimant’s treating doctor showing that the Claimant stated he was taken to the hospital via Uber. During cross-examination, the Claimant ultimately admitted to telling the doctor that he was taken to the hospital by Uber and then conceded that he did take an Uber to the hospital, but then he alleged he could not remember how or who was with him.
Attorney Caron then successfully refuted the Claimant’s story with an employer-witness testimony, who testified as to the company’s procedures at the time a work-injury occurs and that an Uber would never have been called if the Claimant was unconscious. Attorney Caron further questioned the employer-witness as to whether an employer-employee relationship existed at the time of the accident. The witness testified that he knew the Claimant, had personal knowledge that the Claimant and his brother were previously terminated from the job for conspiring to fake a work-related injury prior to the date of the alleged accident, and communicated directly with the Claimant after termination. While not able to present the precluded exhibits, Attorney Caron further refuted the Claimant’s testimony. Following testimony, Attorney Caron argued to the Law Judge that the claimant was not credible. Causal relationship is not just a medical defense but the nexus between the employment and the alleged injuries, and the claimant failed to meet his burden.
The Law Judge ultimately found that the WCL Section 21 presumptions were rebutted and held that the Claimant was not working at the time of the accident and no employer-employee relationship existed. Overall, the Law Judge determined, despite the preclusion of evidence, a disallowance was warranted in light of the employer-witness testimony being more credible than the Claimant’s testimony. The Law Judge also found that the Claimant could not credibly explain how he was able to call an Uber to take himself to the hospital despite allegedly being unconscious following the accident. As a result, the Carrier is not liable for any indemnity awards or medical bills incurred.