201-880-7213

WINNING RESULTS: LOIS Secures Disallowance of Back Claim

The Claimant alleged he sustained an acute injury to his low back on March 31, 2022. Thereafter, the Claimant received an out of work note from his chiropractor removing him from work until May 18, 2022. The Carrier chose to deny the claim since the Claimant has a thirty-year history of filing back complaints with the Employer.

Given the Claimant’s extensive history of back issues, we initially considered our WCL 28 argument our strongest defense. As such, at the Pre-Hearing Conference, we raised all issues of controversy emphasizing our notice defense. We requested a full list of providers the Claimant treated with for the back so that we can subpoena all potentially relevant records. Given the complexity of the claim, we had the WCLJ remove the claim from the expedited calendar to afford us sufficient time to review such records.

At trial, while developing the Claimant’s testimony, we quickly realized that the strongest argument was the Claimant’s failure to allege an acute injury within the meaning of Workers’ Compensation. We had the Claimant confront the incident report drafted in connection with the alleged injury. Therein, it is noted that the Claimant felt progressively sorer throughout the day. While cross-examining the Claimant, we had him concede that there was no specific instance he could recall that ultimately caused him acute pain. Given that the Claimant alleged an acute injury and not a repetitive use one, it was incumbent upon the Claimant to specifically allege an incident at work. Moreover, the Claimant was receiving extensive chiropractic care for the last two years for a non-work-related injury. In fact, the Claimant received an adjustment just six days prior to alleging the novel work injury.

Once the lay record was closed, we had the opportunity to draft summations. In our summations brief, we argued that the claim must be disallowed under WCL 28, for lack of causal relationship, and for failing to allege an acute work accident under WCL 10/21. Specifically, we argued that it is improbable that the Claimant can make out a unique novel accident when he was receiving lower back treatments as close in time as six days prior to the alleged accident, and since the Claimant could not articulate an actual workplace accident had occurred. Swayed by our arguments, the WCLJ found in our favor and disallowed the claim in its entirety. The WCLJ reasoned that the Claimant could not allege a work accident within the meaning of workers’ compensation, and therefore was compelled to disallow the claim.

Download the New York Workers’ Compensation Law Handbook

Download Our New York Workers’ Compensation Law Handbook

The 2023 edition of Gregory Lois’ practical, up-to-date, and easy-to-understand guide to workers’ compensation claims in New York.

This book is designed for employers, attorneys, claim adjusters, physicians, self-insured employers and vocational rehabilitation workers.

Download Now

Learn More About New York Workers’ Compensation Defense at LOIS

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.

Learn More

Get articles delivered to your inbox, once a month.

Subscribe Today!