LOIS Wins Trial on Permanency Through Effective Cross-Examination

LOIS Associate Attorney Kristine Rosales won a contentious trial on the issue of permanency in a New York Workers’ Compensation case involving a right shoulder claim. The Claimant’s treating doctor assessed a 30% SLU, while Carrier’s consultant opined 8%. Due to the differing opinions on SLU between the two doctors, depositions ensued. Attorney Rosales pressured the treating doctor on cross-examination and asked him to explain how he found a 20-degree substantial difference on Claimant’s extension from his last examination compared to his permanency report; the two examinations, after all, were performed only a few months apart. The doctor could not explain this difference, agreeing that the ranges of motion did not make any sense. The doctor thereafter alleged that it was a typographical error and the finding in his prior report should be the same as the permanency report. In light of the concessions, the Law Judge ultimately found that the treating doctor’s testimony lacked credibility. He ruled that the medical evidence on record showed that the Claimant failed to exert sufficient effort by restricting his range of motion during examination, given the totality of the circumstances. Thus, the Law Judge agreed with the position of Attorney Rosales and adopted the findings of the Carrier’s consultant. As a result of the favorable outcome, the Carrier’s exposure was significantly reduced.