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WINNING RESULTS: How Cross-Examination At the Time of Permanency Saves Client

Lois Law Firm successfully saved a self-insured employer (hereinafter, “SIE”) $65,000 at the time of permanency by persuasively arguing that the IME doctor’s Schedule Loss of Use (“SLU”) opinion was more credible than the treating doctor’s SLU opinion. In this case the claimant injured his right shoulder and had an average weekly wage of roughly $1,100.00, which resulted in a maximum weekly benefit rate slightly higher than $760.00 per week. The SIE produced an IME report finding a right arm SLU of 25% based on range-of-motion (“ROM”) deficits and the claimant produced a C-4.3 permanency report finding a 52.5% SLU of the right arm based solely on ROM deficits. Thereafter, the parties were directed to complete depositions on the issue of SLU to the right arm.

As employers and carriers are aware, SLU awards can result in significant cost exposure due to the maximum weekly benefits rate increasing each year for New York State Workers’ Compensation cases. Currently, the maximum weekly benefits rate in New York State is $1,125.46 through June 30, 2023. Therefore, theoretically, an SLU award for an arm can be up to 312 weeks of benefits, resulting in a maximum exposure of $351,143.52. Accordingly, LOIS Law Firm, as a standard practice, actively seeks ways to reduce an employer’s or carrier’s exposure at the time of permanency. One of the most effective ways to accomplish this is through aggressive cross-examination of a treating doctor regarding their SLU opinion.

In the present case, the IME’s opinion of a 25% SLU of the right arm would result in an award of 78-weeks of benefits, and the treating doctor’s opinion of a 52.5% SLU of the right arm would result in an award of 163.8 weeks of benefits. The difference in cost exposure between the two potential SLU awards is a little over $65,000. Attorney, Ian Haberstro, was responsible for the depositions of both the IME doctor and the treating doctor on the issue of SLU to the right arm (25% vs. 52.5%). During the cross-examination of the treating doctor, the doctor testified that his SLU opinion was based solely on ROM deficits in the right arm. Attorney Haberstro, was successful in having the treating doctor concede that the claimant could have been malingering and self-restricting his right shoulder ROM at the time of the SLU examination. The doctor also conceded that additional treatment could result in the claimant’s ROM improving. Most importantly, Attorney Haberstro, was able to get the doctor to concede that he could not explain exactly how he applied the New York State Impairment Guidelines criteria and formulas when he was calculating the SLU percentage.

In contrast, when the deposition of the IME doctor was completed by Attorney Haberstro, it was highlighted in the IME’s deposition that the IME correctly documented the claimant’s right shoulder ROM 3-times in all planes using a goniometer, in accordance with the Impairment Guidelines’ criteria, and that the IME correctly calculated the SLU award for the right arm.

Based on the foregoing, the Law Judge rendered a decision finding that the treating doctor’s testimony was less credible than the IME’s testimony on the issue of SLU of the right arm, and implemented the IME’s opinion of a 25% SLU of the right arm instead of the 52.5% SLU found by the treating doctor. This resulted in the SIE saving over $65,000 at the time of permanency.

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We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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