Winning Results

LOIS Protected and Maintained Carrier’s Right to Due Process in Lay Witness Argument

LOIS Partner Joseph Melchionne secured a victory for his client and defended the Carrier’s due process rights in a New York Workers’ Compensation case. The Claimant in this case provided testimony during a compensability trial to develop the record on all issues, including proper employer. Following the Claimant’s testimony – and before the presentation of the Carrier’s lay witnesses to rebut the Claimant’s testimony – the Law Judge indicated that he would issue a written Reserved Decision outlining which party was liable for the claim. Melchionne argued that the Carrier reserved the right to present three (3) employer witnesses to rebut the Claimant’s testimony and that the Carrier has the affirmative right to present the witnesses. In response, the Law Judge held that a compensable accident occurred based solely upon the Claimant’s testimony. Melchionne then argued that failing to continue the matter to permit the presentation of the witnesses was a due process violation. Following an appeal, the Board Panel agreed with Melchionne’s position: “Upon review of the record, the Board Panel finds that the finding of a ‘compensable accident’ is premature at this time and is rescinded…The Board Panel finds that [the Carrier] should be afforded due process in being able to present its witnesses on the issue of whether an accident occurred on February 21 ,2023, in the first instance before a determination is made by the Law Judge.” Bay maintaining that the Carrier is afforded a right to due process, Melchionne created a record so as to affirm that the Carrier is able to present its witnesses before a Law Judge can issue a decision on compensability.

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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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