LOIS Senior Associate Attorney Stephen McLinden prevailed on appeal of a New York Workers’ Compensation occupational disease claim due to repetitive use to the back. In this claim, the Claimant effectively retired from her home health aide position in July 2020 and started prosecuting the claim against the employer about a year later. The Claimant repeatedly failed to produce all prior medical records and the initial treatment records related to the back. In testimony, the Claimant suggested that she changed assignments over the years and that this sometimes involved heavier individuals or pushing wheelchairs more frequently than others. McLinden argued that some of the Claimant’s descriptions of her job duties seemed dubious, such as pushing heavy shopping carts and lifting heavy pots of food, as it did not meet the standard of repetitive use.
The Board Panel agreed with McLinden’s arguments and reversed the Law Judge’s establishment of the claim. The major reason the Board Panel cited for the disallowance was that the treating doctor did not have specific information on the Claimant’s duties, such as how often in a typical day the Claimant might be pushing a wheelchair. By thoroughly cross-examining the treating doctor and Claimant to demonstrate uncertainty about causal relation and a lack of a clear story about her work and why she stopped working, a claim that could have been approaching four years of awards is now disallowed, decimating the client’s exposure and closing the case.
