Winning Results

LOIS Obtains Disallowance for Claimant’s Failure to Prove “Repetitive Use”

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.

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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.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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