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WINNING RESULTS: LOIS Earns Disallowance of Controverted Shoulder Claim in Light of Prior Rotator Cuff Repair Surgery

Lois Law Firm was recently able to procure a disallowance from the Law Judge even after accepting the claim without liability because of the flaws we highlighted in the treating doctor’s awareness of a prior surgery. The claimant reported a shoulder injury occurring in October 2020 while trying to remove stuck blankets from a washing machine at work, causing a crack in the bone to the shoulder.

The treating doctor reported that the claimant experienced an immediate onset of pain following the accident and was seen and evaluated in the emergency room. The doctor diagnosed inflammation with a possible re-tear of the rotator cuff and requested that the claimant undergo an MRI of the shoulder. The MRI reported detailed several impressions including possible tearing and moderate degenerative changes. In subsequent reports, the doctor recorded a history that the claimant suffered a dislocated shoulder injury some ten years prior which required relocation under anesthesia, and a second dislocation wherein he underwent another repair. The Carrier’s IME included a history of a right shoulder injury from 2009 and a right rotator cuff surgery in 2010, although no medical reports or clarifying details were available for the consultant, and while the consultant provided diagnoses, did not specifically state whether causal relationship existed. The claimant received voluntary payments without liability by the carrier for approximately ten weeks until the carrier learned of several issues with the claim.

The claimant initially did not disclose the pre-existing injuries, nor did he disclose self-employment which we discovered after obtaining social media surveillance. At this time, LOIS attorney, Steve McLinden, sought to have the claim disallowed and for the claimant to be disqualified under Section 114-a for failure to disclose these issues.

We demanded sworn testimony of the claimant, who admitted to a prior shoulder surgery through the state’s correctional system. The claimant also testified that he has not worked since the accident date because of his injury. However, the claimant further testified that he had applied for and since received unemployment benefits in connection with his other businesses. The claimant detailed self-employment with an event planning business, which he testified was largely online during the pandemic but that he had traveled to several cities around the United States for club nights. He also operated a clothing line but had not been producing merchandise in recent time. The claimant admitted he had not disclosed those prior to an investigation locating postings about his businesses on social media.

Prima facie medical evidence of a shoulder injury was found, and the doctor was eventually deposed. The provider testified that the claimant did not provide a prior medical history in the initial visit, other than that he had a dislocation and after that had a repair of his shoulder and repair of his rotator cuff in the past. At a later exam, the doctor learned that the original injury was a dislocation in 2008 followed by a 2012 rotator cuff surgery. The doctor testified that at the initial examination, he was only able to review the emergency room records and did not have any information regarding the claimant’s history. Nonetheless, he diagnosed a possible rotator cuff tear, and from the claimant’s description, considered it causally related. The doctor conceded that the imaging thereafter did not show a rotator cuff tear, and that the claimant’s prior injuries or post-surgical scarring could have represented the impressions on the MRI.

While we were litigating, the claimant issued a settlement demand of comparable to approximately 20% schedule loss of use of the arm, or more than a year’s worth of awards, and rejected a settlement offer in the $5,000 range. As such, the parties sought for the Law Judge render a decision on the compensability of the claim and Section 114-a issues. The Law Judge agreed with attorney McLinden’s arguments that the treating doctor did not testify credibly and had little to no information on the claimant’s prior rotator cuff surgery, especially in the initial report which had been cited for prima facie medical evidence. The claim was disallowed on this flawed information to the treating doctor which could not meet the burden of proof for a compensable causally related injury.

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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.

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