LOIS Partner Connor Wetherington and Paralegal Chrystalla Karamanis obtains disallowance at the trial level after invoking a WCL Section 21-a denial, securing a win for their employer-client (a warehouse style supermarket chain) in a New York Workers’ Compensation claim. The Claimant alleged an acute, traumatic right shoulder injury while lifting and stretching to product on the top shelf. During the discovery phase, multiple red flags arose following the receipt of internal CCTV footage and the initial hospital records. First, the internal CCTV footage showed the Claimant working without issue and predominately using the left arm. Second, the initial hospital records revealed that the Claimant denied any type of trauma to the right arm. The hospital records also indicated that the Claimant reported the right shoulder pain had been present for three (3) weeks prior to the alleged date of loss.
Upon receipt of this pertinent information, Wetherington, Karamanis, and the Employer deployed an aggressive strategy to controvert the claim by invoking WCL Section 21-a. Even though the Claimant has been paid indemnity benefits, the SROI-IP specified it was done so “W – Without Liability,” which preserved the ability to controvert the claim up to one (1) year after the date of loss. During depositions, the Claimant’s treating provider conceded they were unaware the Claimant visited the hospital, as well as the fact the shoulder pain was present at three (3) weeks prior to the alleged date of loss. Through effective cross-examination at trial, Wetherington obtained a concession from the Claimant in that he did not experience trauma to the right shoulder and failed to disclose the pain history to her doctor.
Overall, the Law Judge determined the Claimant was not credible and failed to meet her burden of proof to support a workplace injury. In the making this determination, the Law Judge relied on the hospital records indicating there was no trauma to the right shoulder and persistent pain prior to the alleged date of loss. The Law Judge also relied on the internal CCTV video showing the Claimant predominately using their left arm during the time when the injury allegedly occurred. Therefore, the claim was disallowed in its entirety as there was no evidence of an acute, traumatic injury.
