The claimant, was injured on June 18, 2021, when he was stacking and restacking the bread boxes and he felt a pop in his left shoulder. The claimant returned to work, full duty, for the same employer on August 23, 2021.
At a hearing on January 30, 2023 the claim was established to the left shoulder with an AWW of $1,043.49. LOIS attorney Adam Lowenstein questioned the claimant about prior injuries. The claimant disclosed a February 19, 2007 injury to the shoulder, but stated that another prior September 23, 2013 accident involved the left knee only. Both accidents occurred in Pennsylvania. The claimant was directed to provide a HIPAA within 30 days. Both sides were directed to produce permanency reports within 75 days and the case was marked no further action.
An IME was performed on March 22, 2022. He opined that the claimant had a 28.8% SLU of the left shoulder. However, the claimant denied any prior accidents or injuries to the left shoulder. On April 17, 2023 an RFA-2 was filed raising fraud for the claimant’s failure to disclose the prior left shoulder injury.
At a hearing on June 1, 2023, the Law Judge addressed the RFA-2. Attorney Lowenstein raised the issue of fraud for the claimant’s failure to disclose the prior left shoulder injury to the IME. He argued that the IME was unable to comment on apportionment given the denial of the prior injury. Additionally, Attorney Lowenstein argued that the claimant must be precluded from producing a permanency opinion as they failed to do so as directed, citing Matter of Xhema. The Law Judge continued the case to July 6, 2023 for the claimant’s testimony on the issue of fraud. Claimant’s counsel requested cross-examination of the IME and was directed to have same completed by the next hearing. The Law Judge granted claimant’s request for a final opportunity to produce a permanency report by the next hearing. Attorney Lowenstein reserved the right to produce an addendum on apportionment, if needed, and to cross-examine the treating provider. Opposing counsel noted that a treating permanency appointment had not yet been scheduled.
The claimant again failed to produce a permanency opinion.
At a hearing on July 6, 2023, the Law Judge addressed the issue of 114-a fraud and the claimant’s testimony was taken. On cross-examination Attorney Lowenstein highlighted the non-disclosure of a prior on the C-3, to the treating physicians and to the IME. Attorney Lowenstein also noted that the claimant appeared to change his testimony from a prior left shoulder injury at the January 30, 2023 hearing to now state that he fell from a bridge and can’t remember what he injured. Attorney Lowenstein then gave oral summations to support his position and requested that mandatory and discretionary penalties be imposed as the non-disclosure hindered the IME’s ability to opine on apportionment.
Ultimately, the Law Judge agreed with the carrier’s position and found that the claimant committed a 114-a violation. The Law Judge also agreed with Attorney Lowenstein and implemented a discretionary penalty of 52 weeks to be deducted from the SLU award.
