LOIS Obtains Favorable Finding of No Permanency Award

LOIS Partner Declan Gourley prevailed in a permanency trial in a New York Workers’ Compensation case, having a Claimant be found to have 0% Loss of Wage-Earning Capacity (LWEC) and no Schedule Loss of Use (SLU) of the right arm/shoulder. The Claimant reached maximum medical improvement for the established neck and right shoulder injuries. An Independent Medical Examiner (IME) had found the Claimant to have a 0% SLU of the right arm/shoulder and Class 2, Severity A of the neck. The Claimant’s treating physician had found a 20% SLU of the right arm/shoulder with a Class 2, Severity A of the neck. At the time of classification, the Claimant was working for the same employer, but in a different role. The Claimant requested for a finding of 15% LWEC and 20% SLU of the right arm. Attorney Gourley cross-examined the Claimant regarding functional and vocational skills to demonstrate the Claimant had previously obtained a bachelor’s degree and had worked in multiple less physical jobs which his skills were transferable. The Claimant conceded that while he was working in a different role post-accident for the employer that the reason for the role change was not causally related to the work accident or his injuries. Through effective cross-examination of the treating physician, Attorney Gourley undermined the credibility and findings at permanency of the treating physician especially with regards to the finding of a 20% SLU of the right arm/shoulder. The treating physician conceded that the Claimant had normal range of motion findings at five examinations prior to his examination when permanency was assessed and further conceded that the Claimant had not treated prior to his permanency examination in approximately one year and for this reason the IME was found more credible. As such, there was no permanency award to the Claimant, and future monetary exposure was severed.