LOIS Partner Connor Wetherington and Paralegal Chrystalla Karamanis obtain Board Panel Decision reversing establishment and compensability found at trial level, securing wins for their employer-client (a Membership-Only Warehouse Club) in a New York Workers’ Compensation claim. The Claimant alleged a right hip injury after purportedly overstretching while loading and unloading material from pallets. Of note, at the Pre-Hearing Conference, the Claimant’s representative requested an “NFA-FTP” designation, as he did not wish to proceed due to “not loving” the medical records. This was due to the Claimant having underlying, pre-existing arthritis and treatment for the hip. It was not until nearly one year later that the Claimant was ready to prosecute the claim, after the PAR System authorized a total right hip replacement.
At the trial, Wetherington obtained a concession from the Claimant in that she had been treating for right hip arthritis since January 2022. The Claimant conceded to receiving x-rays, physical therapy, and injections until the alleged injury. The Claimant conceded that she did not complete an incident report for the alleged work incident. Instead, the Claimant filed for FMLA on date of the alleged injury, which was filed to the Board in preparation of trial. The Claimant further conceded her last day worked was the day before her FMLA leave. Despite these concessions, the Law Judge found the Claimant credibly testified as to how they exacerbated the underlying right hip arthritis.
Unphased, Wetherington and Karamanis appealed the decision to the Board Panel and were rewarded with a reversal. In the decision, the Board Panel focused on the prior medical treatment. The Board Panel also highlighted how the Claimant did not file a claim for Workers’ Compensation benefits until after she filed for FMLA. Thus, the Board Panel ruled that the record did not support a finding that the Claimant sustained an injury to the right hip in the course and cope of employment. As such, the claim was disallowed and closed.
