LOIS Senior Associate Adam J. Lowenstein secured a disallowance in a New York Workers’ Compensation claim, affecting the Claimant’s third-party action. The Claimant alleged tripping and falling over debris, injuring the neck, back, left shoulder, right knee, and right leg. The Employer advised that they had no record of any incident and that no accident report was filed and in addition; in fact, the Claimant was terminated on the same day for poor performance after only working for the employer for two weeks. Lowenstein demanded that the Claimant produce the initial hospital records before proceeding with a trial, and the Law Judge directed that the initial records were necessary in order to move forward. The Claimant then did not pursue the claim or produce the records for almost 2 years.
At the next hearing, the trial was set, and depositions were directed on the neck and the back. However, once the initial hospital records were reviewed, there were multiple discrepancies noted. The Claimant arrived around 10:45 p.m. at the hospital; however, the accident was alleged to have occurred at 2:00 p.m. The Claimant reported right knee pain and left shoulder pain, with no complaints regarding the neck or back and denying same. The history indicated that the Claimant tripped over a tube at work, landed on his right knee then left shoulder, which varied from the Employee Claim Form and from the histories provided to other physicians. Moreover, despite the controverted status of the case and the initial hospital records, the Claimant underwent a cervical fusion on October 24, 2023.
At trial, Lowenstein conducted cross-examination of the Claimant, highlighting that despite having a claim for the neck and the back, the only allegations of injury at the initial hospital visit were for left shoulder and right knee pain. It was further pointed out that the Claimant specifically denied neck or back pain and had a completely normal examination. The employer-witness also testified to having no knowledge or reporting of an accident on the alleged date and that the Claimant had been terminated. Lowenstein explained the issues with the medical records, the variations in the mechanism of injury provided to different physicians, and the specific denial of neck and back injuries in the initial hospital record. Ultimately, the Law Judge disallowed the claim based on discrepancies in histories given to providers, as well as in the Employee Claims Form, further citing the lack of neck or back complaints in the initial hospital records. As a result, the Carrier is not liable for indemnity or medical costs.
