The Claimant was a delivery man in his position for over thirty years. Over the course of those thirty years, the Claimant filed over ten claims against the same employer, most of which were established. The Claimant previously brought a knee claim which was disallowed within the last year, which Lois Law Firm successfully defended and avoided total knee replacement for both knees. Concurrently, the Claimant brought a claim for the bilateral wrists, alleging both bilateral wrist injuries and bilateral carpal tunnel syndrome.
Similar to his prior claims, the Claimant filed numerous C-3.0s, alleging both acute and occupational injuries to the wrists. The common thread among these forms was that the Claimant failed to disclose prior injuries to the wrists. Similarly, he failed to disclose the priors to his treating doctor for several months and to the IME doctor. Interestingly, the Claimant alleged the date of loss to be the last day of work before him going off work due to his knee injury.
After successfully obtaining numerous postponements, PFME was found for occupational injuries to both wrists and CTS, and the claim was set for trial. LOIS attorney, Jeremy Janis, raised WCL 114-a, given the Claimant’s failure to disclose the prior injuries, and the claim was set for both medical and lay witness testimony.
During cross-examination of the treating doctor, the Claimant’s conceded that he was not advised of the prior injuries for a number of months. He conceded that he was unaware of any specific job duties of the Claimant and relied on other Claimants to determine the job duties of this specific Claimant.
These concessions formed the basis of our argument, which cited a very recent Third Department case, Matter of Yearwood v. Long Island University, 210 A.D.3d 1256 (N.Y. App. Div. 2022), a case in which the Court affirmed a finding by the Board found by failing to disclose treatment history to the treatment provider. We further cited a recent Board Panel Decision in which the Board Panel disallowed a repetitive use claim based upon the doctor not knowing how long or frequently the Claimant performed the job duties he was alleging. Lois requested both a disallowance of the current claim and a finding of fraud based on his consistent failure to disclose prior injuries, which was substantial, intentional and material.
The Law Judge agreed with our arguments, both disallowing the claim and finding a violation of WCL 114-a, permanently barring the Claimant from receiving indemnity benefits. The decision specifically noted the concessions from the treating doctor and the arguments made in summations in disallowing the claim. As to the WCL 114-a, the Law Judge that the Claimant not only failed to disclose prior injuries in his C-3.0s, he also failed to report the same to his treating doctor for a number of months, in addition to the IME doctor. Specifically, the treating doctor testified that it was not until months after the initial examination that the Claimant reported prior accidents, treatment, and loss of use. The WCLJ found the Claimant’s conduct significant, purposeful and egregious and permanently barred him from wage replacement benefits.
