LOIS Partner Joseph N. Melchionne achieved a preclusion finding with regard to evidence of permanency in a New York Workers’ Compensation claim. An Independent Medical Examination determined that the Claimant had reached maximum medical improvement (“MMI”) with several sites showing no (0%) Schedule Losses of Use. The Board issued an EC-81.7 on August 15, 2024, directing the Claimant to obtain a permanency report. The Claimant failed to do so by the deadline set by the Court. As such, on November 12, 2024, Melchionne immediately requested for a hearing, demanding that the Claimant be precluded from producing a permanency report and to implement the uncontroverted IME.
At the hearing, Melchionne demanded that the Claimant be precluded from producing a permanency report and that a finding of MMI be made based upon the fact the Claimant did not produce a permanency report. The Claimant’s attorney argued that the Claimant had an appointment scheduled that week in order to obtain a permanency opinion and should be afforded a final opportunity to produce the report. In response, Melchionne aggressively argued that the Claimant was directed to produce the report and failed to do so. The Law Judge was persuaded by Melchionne’s arguments, granting his applications, and precluded the Claimant from producing a report on permanency and determined that the Claimant had achieved MMI.
