LOIS Partner Joseph N. Melchionne obtained a disallowance to the left shoulder and a direction to stop payments in a New York Workers’ Compensation case. At a hearing, the Law Judge found that the Carrier waived its opportunity to obtain an IME regarding the consequential left shoulder. Melchionne then argued that despite the finding, depositions must be directed, as the Carrier wished to cross-examine the Claimant’s physician. Melchionne then requested that the Claimant produce evidence of labor market attachment, as the medical evidence showed a partial disability. The Law Judge agreed, directing the parties to produce depositions and directing the Claimant to produce his resume and evidence of work search every 60 days.
At the following hearing, after depositions, Melchionne argued that the Claimant had not produced any proof of labor market attachment as was previously directed and, as such, awards must be suspended. The Law Judge agreed with Melchionne and determined that the Claimant was not attached to the labor market and suspended awards. Melchionne then argued that the Claimant’s consequential left shoulder must be disallowed because the Claimant’s doctor could not provide a definitive diagnosis and could not confirm that he was present in the examination room for multiple examinations. The Law Judge again agreed, was persuaded by Melchionne’s arguments, and disallowed the left shoulder. As a result, the Carrier is not liable for medical care related to the left shoulder and not liable for ongoing awards.
