LOIS Wins Permanency Trial With Section 114-a(3)(ii) Penalties Imposed Against Claimant’s Counsel

LOIS Associate Kristine Rosales secured a victory in a New York Workers’ Compensation case related to permanency. The Claimant obtained an opinion from her treating physician that included permanency opinions of a 51.5% SLU for the left arm, a 22% SLU for the left hand, a 25% SLU for the left hip, and a 17.5% SLU for the left foot. In contrast, the IME assessed a 10% SLU for the left arm, a 0% SLU for the left hand, a 0% SLU for the left leg, and a 0% SLU for the left foot. In a Reserved Decision, the Law Judge found that the testimony of treating doctor was not credible based on the contradiction between the treating doctor’s documentary and testimonial evidence, as the treating doctor testified that Claimant did not undergo surgery (despite the fact that there was evidence of surgery) and that the contralateral motion was not measured. The Reserved Decision also indicated that the IME testified more credibly and sufficiently explained the findings made on examination. Ultimately, the Law Judge found that the Claimant is not entitled to any SLU, since the Claimant had already been previously compensated for functional impairment and the Claimant has no additional functional impairment, pursuant to the seminal Matter of Genduso. In addition to this finding, the Law Judge also imposed a WCL Section 114-a(3)(ii) penalty based on the Claimant’s attempt to implement treating doctor’s 51.5% SLU opinion for the left arm without disclosing to the Board and the Carrier that the Claimant previously obtained a 40% SLU of the left arm in an earlier Workers’ Compensation claim. As a result of this favorable outcome, the Carrier’s exposure was significantly reduced.