Winning Results

LOIS Secures Disallowance by Arguing Both Specific Accident and Occupational Disease Defense Theories

The Claimant alleged he sustained an elbow injury while covering another employee months prior to providing notice to his Employer. Initially, we interpreted the claim filed as an acute injury since the Claimant specified a period of time he alleged injury. At the Pre-Hearing Conference, it was clear that opposing counsel wanted the claim to be reviewed as an occupational disease, suggesting that through repetitive use of his work duties, the Claimant injured his elbow. Opposing counsel knew that if the claim were interpreted as a specific injury, there would be evident notice issues given the late reporting. To counter opposing counsel’s position, LOIS attorney Tomer Lehr took a holistic approach and defended the claim from both an occupational disease and specific injury perspectives. Accordingly, at trial, the Claimant was asked questions meant to demonstrate that he allegedly sustained an injury on a specific day at work yet failed to bring attention to the Employer until many months after the fact.

After taking testimony, the claim was continued for medical testimony. We knew that the Claimant’s medicals were weak and proceeded to cross-examine the Providers without electing to get an IME to comment on causal relationship. On cross-examination, the treating physician quickly divulged he had no understanding of the Claimant’s distinctive work features. He could not specify how heavy the weights were that the Claimant lifted, how long he worked for the Employer, how much of the day was spent lifting what he coined were “heavy weights.” Under an occupational disease/repetitive use theory, it is incumbent upon the Claimant to demonstrate a recognizable link between the alleged condition and a distinctive feature of his or her work. Without such knowledge, a treating physician’s opinion as to causal relationship to one’s work is meritless since it does not follow that one can properly determine the cause of a condition without knowing specifically what the Claimant does.

After taking medical and lay testimony, LOIS filed summations arguing for disallowance under both theories. The WCLJ ultimately disallowed the claim under the occupational disease theory finding that the Claimant’s medical did not meet the required standard to demonstrate he sustained a causally related work injury.

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New York Workers’ Compensation Defense at Lois Law Firm

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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