Construction Defense Team Associate Jonathan Mallozzi successfully obtained a fraud ruling (“114-a finding”) favorable to the employer due to the claimant’s concealment of prior medical treatment. The Court ruled that the claimant had committed fraud and imposed a penalty of no further indemnity benefits as a result.
This claim was established for the right shoulder, right calf, right elbow, neck, left shoulder, right wrist, and lower back. In his C-3 dated February 25, 2019, the claimant alleged that when he was taking equipment downstairs, he tripped over a garbage bag that was left on the stairs and fell down the stairs. The claimant testified that he was only ever involved in one motor vehicle accident involving a parked car. However, through thorough investigation, records were discovered for an accident where the claimant was struck by a reversing vehicle while crossing the street. It was also discovered that the claimant underwent comprehensive treatment in connection with this prior claim. However, he failed to disclose it when he testified in this claim.
After extensive development of the record utilizing these prior records, cross-examination of the claimant, and arguments made by Jonathan that the claimant made a material misrepresentation by failing to disclose this prior accident and treatment, the Law Judge found fraud under WCL Section 114-A. The Law Judge reasoned that the claimant did not reveal prior treatment when asked about it under oath or to any treating or IME physician, and this is material as the treatment involved body parts that were allegedly injured in the instant claim.
This finding of fraud was a tremendous cost-savings win for the client, as it curbed indemnity exposure in a claim that could have potentially ended with a high LWEC finding.
In addition, in this same case, the Law Judge imposed an excessive $1,000 penalty against the Carrier for alleged duplicative C-8.1Bs that had been submitted to the file. Jonathan appealed this decision and argued to the Board Panel that these denied treatment bills were not duplicative as the Carrier was billed for the same dates of service over and over, and was protecting its rights under 12 NYCRR 325-1.25. Upon review of the record, the Board unanimously found the penalty imposed was not appropriate and modified the Law Judge’s Decision to rescind the WCL Section 114-a(3)(i) penalty in the amount of $1,000.00 against the carrier.
CASE: SRC v. Construction Entity
CLIENT: Construction OCIP
DATE OF DECISION: August 20, 2020
LOIS ATTORNEY: Jonathan Mallozzi
Construction Defense at LOIS
Our Construction Defense Team is led by Partner Tashia Rasul, Esq. This dedicated team exclusively handles workers’ compensation claims arising out of construction accidents. Tashia’s expertise lies in complex coverage issues, wrap-ups, and claims arising out of catastrophic injuries. As part of her practice, Tashia frequently visits accident sites and provides on-site training to employers regarding workers’ compensation claims, as well as to develop defense strategies. Tashia is the author of the “Defending Construction Claims in New York” Handbook, available here.
Tashia regularly counsels clients on the importance of coordinating defense of workers’ compensation and general liability claims, and has a track record of favorable outcomes as a result of such coordination. In concert with Lois Law Firm’s recommended protocol for coordinating workers’ compensation and general liability defense, Tashia led a discussion of the protocol at the 2019 Annual Claims and Litigation Management (CLM) Conference to educate her peers on the importance of joint defense.
Who We Represent
We represent large project owners, OCIP and CCIPs, 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.
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.
All of our attorneys are 100% dedicated to defending employers and carriers in 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
More from the Construction Defense Team.
Join the Construction Team for upcoming training events.
Contact partner Tashia Rasul, Esq., Construction Defense Team Lead, with questions or to make referrals.