LOIS Senior Associate Adam J. Lowenstein obtained a disallowance in a New York Workers’ Compensation claim. This claim involved a truck driver, who alleged that a co-worker ran over his left foot with a cart, causing injuries to his foot and knee. However, there was no record of a timely notice to the employer, and the claimant did not seek treatment until a month later, when he presented to the hospital with a left foot infection requiring surgery. The records also made no mention of any work accident. A work-related injury was not documented in the medical records until more than three months after the alleged accident. Although an IME later found causality, Attorney Lowenstein’s cross-examination of the treating nurse practitioner revealed the following major inconsistencies: claimant’s report of different mechanisms of injury, failure of the nurse to connect the injuries to work within a reasonable degree of medical certainty, and lack of correlation between the infection-related findings and the alleged accident.
At trial, claimant provided yet another version of events, as he admitted failure to report the injury on the accident date, and confirmed he sought no treatment until his foot became swollen and painful weeks later. He also conceded not disclosing to the hospital providers that the injury was work-related. During oral arguments, Attorney Lowenstein underscored the inconsistent histories, the absence of contemporaneous medical documentation supporting a work accident, the nurse’s testimony undermining causation, and the claimant’s untimely notice. The Law Judge uphold the position of Attorney Lowenstein and found the evidence insufficient to establish accident, notice, and causal relationship, and disallowed the claim. As a result of this favorable outcome, the Carrier is not liable for any incurred bills or any indemnity benefits associated with the disallowed claim.
