LOIS Attorney Bailey Ott recently secured a favorable Board Panel Decision, which affirmed a trial win in which the claimant had been found to have no disability and no permanency to the neck and back, as well as 0% SLUs for the right arm, right hand, right leg, left foot, and right foot. This case had a very high potential exposure based on the amount of injuries the claimant had sustained, but we were able to secure a finding of no permanent injuries to any of the established sites. This case was established for injuries to the bilateral knees, left hip, neck, back, right elbow, right wrist, right hip, and bilateral ankles.
Claimant’s treating physician submitted a C-4.3 finding the following SLUs: 76% left hip, 60.8% right hip, 47.5% left knee, 20% right knee, 27.5% right hand, 7.5% right elbow. In an attachment, he assessed a 22.5% SLU for the right foot. The doctor then issued an apportionment opinion for the SLUs: for the right hand he apportioned 30% to the 2016 accident and 70% to 2018; for the right elbow he apportioned 40% to 2016 and 60% to 2018; for the right hip he apportioned 40% to the 2012 accident and 60% to 2018; for the left hip he apportioned 60% to the 2012 accident and 40% to 2018; for the right knee he apportioned 20% to 2012 and 80% to 2018; for the right foot he apportioned 45% to 2012 and 55% to 2018. In the claimant’s 2012 claim, the doctor’s C-4.3 assessed a SLU of 60% for each hip and 25% for the right foot. In his C-4.3 from February of 2017, he assessed a SLU of 60% for the left hip, 73% for the right hip and 25% for the right foot. In the 2012 claim, the claimant was awarded SLUs of 55% for the right leg, 12.5% for the left leg, and 12.5% for the right foot. In the 2016 claim, the doctor’s C-4.3 assessed a SLU of 50% for the right shoulder, 12.5% for the right elbow (62.5% total for the right arm), 40% for the left shoulder, and 45% for the right wrist. In the 2016 claim, the claimant was awarded SLUs of 12.5% for the right arm, 7.5% for the right hand, and 7.5% for the left arm. Therefore, we determined an IME cover letter would be necessary to combat these high SLU findings and to attack the treating physician’s credibility, using targeted questions that highlighted discrepancies in the treating physician’s reports.
I then wrote the IME cover letter, which covered several workers’ compensation claims and civil claims, as well as the substantial amount of medicals involved in this case and surveillance video of the claimant. Our IME for this claim found that the claimant had reached maximum medical improvement. The IME doctor opined that the claimant had a medical impairment Class 2, Severity Ranking A to the cervical and lumbar spine. He also concluded that the claimant has 0% Schedule Loss of Use for the right elbow, right wrist, bilateral hips, bilateral knees, and bilateral ankles. He further noted that there is no ongoing causally related orthopedic disability and that the Claimant is able and has gone back to work full-time with no restrictions (the claimant had missed less than a week of work for this claim).
During deposition, the treating physician proved to give highly incredible opinions, including a 120% SLU finding for the left leg, while our IME doctor testified coherently and in accordance with his report. We drafted an extremely persuasive summation brief, which formed the basis of my argument at the trial. At the trial we were able to successfully argue that the treating physician’s opinions were not credible and that they did not abide by the Impairment Guidelines. We were also able to highlight the ways that our IME doctor was the most credible doctor in the case, by emphasizing the ways that he utilized the Impairment Guidelines, including his use of a goniometer, taking three range of motion measurements for each site, including the contralateral sites, and how his range of motion findings fit squarely with what the Guidelines projected. In finding in our favor, the Law Judge explained that the treating physician’s testimony and reports were completely lacking in credibility. He noted that the claimant had received substantial SLU awards to the right leg (55%), left leg (12.5%) and right foot (12.5%) in her 2012 claim. He also noted that the claimant had SLU awards to the right hand (7.5%), right arm (12.5%), and left arm (7.5%) under her 2016 claim. The Law Judge further explained that the claimant had only lost one week or so from work and continues to work in her pre-accident capacity and did not undergo any surgery. He further pointed out that there was no basis whatsoever for the treating physician’s SLU findings as they relate to this case despite his effort to apportion these findings to an earlier case or cases. The Law Judge found the IME doctor to be an experienced orthopedic surgeon who found normal range of motion findings for all sites and no disability or SLU findings on a causally related basis to all sites.
Claimant’s counsel then appealed these findings, and we filed a rebuttal brief, relying on our oral and written summation arguments. The Board Panel then affirmed the Law Judge’s findings. In its decision, the Board Panel echoed our arguments that the claimant’s treating physician was incredible and did not properly apply the Impairment Guidelines and that the IME doctor was the most credible doctor in this case.
CASE: YK v. HAS
CLIENT: A National Insurance Carrier
DATE OF DECISION: July 2020
LOIS ATTORNEY: Bailey Ott, Esq.
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.
Our approach in New York.
Within seven (7) days of referral, we provide your adjuster with a comprehensive legal action plan and budget, setting out the likely exposure, plan of action to get the case to close, analysis of any potential legal defenses, and identify the handling/trial attorney and paralegal assigned to the case. We provide you with any court- or venue- specific information, such as who the judge is, evaluation of the treating providers, best IME doctor to use, etc.
Who we are.
All of our attorneys are 100% dedicated to defending worker’s compensation claims. While we do some associated general litigation (usually subrogation related to a workers’ compensation claims we handle) all LOIS attorneys focus their practice on workers’ compensation.
We have tried dozens of cases to conclusion this year in each of the courts we go to. We are aggressive in pursuing appeals and our practice has an above-average record on winning appeals.
We Handle the Entire State.
We appear in all New York City courts and all “upstate” hearings. We handle all workers’ compensation hearing locations in the State of New York.
City hearing points:
- Queens (Jamaica)
- Staten Island
- White Plains
- Garden City
We attend all Hearing Points statewide:
- Albany (Menands)
- Newburgh (New Windsor)
- New City
- Saranac Lake
Contact partner Greg Lois with questions or to make referrals.