LOIS attorney Joseph Melchionne was successful in obtaining a judicial finding that newly raised body parts were time-barred under WCL Section 28, and thus disallowed from the claim. The claim was established for the claimant’s work-related injuries to his low back and for consequential depression in relation to a 2017 work accident. In November of 2019, two years and eight months after the establishment of the claim, the claimant produced a medical report diagnosing traumatic injuries to his bilateral shoulders and bilateral wrists. In 2020, the claimant raised those injuries and a law judge determined that the report constituted prima facie medical evidence (PFME) for those injuries. As such, Mr. Melchionne argued that the newly raised injuries were time-barred under WCL Section 28 and reserved the right to cross-examine the claimant on that issue.
At a recent hearing Mr. Melchionne took the claimant’s testimony regarding his treatment for his shoulders and wrists, specifically, his delay in treating for those alleged injuries and a lack of medical evidence reporting that he complained of those injuries for the first two years and eight months of the claim. During his testimony the claimant seemingly also raised his neck as a causally related injury. Following the claimant’s testimony, the attorneys were allowed to make summation arguments. Mr. Melchionne argued that the medical and testimonial evidence produced to the record clearly evinced that the claimant should be time-barred under Section 28 from proceeding with any additional claimed injuries because none of his newly raised injuries were listed in his C-3 Employee Claim Form, none of the hundreds of medical reports filed between January 2017 and November 2019 contain even the mention of any symptoms to the shoulders or wrists, the claimant’s medical evidence did not indicate that the claimant’s symptoms were raised as consequential injuries, and the claimant’s testimony was inconsistent and not credible regarding when his symptoms began and if he informed his treating doctors of same.
The law judge was persuaded by Mr. Melchionne’s arguments and disallowed the claimant’s attempt to amend the claim to include causally related bilateral shoulder, bilateral wrist, and neck injuries based upon a ruling that the claimant was time-barred from pursuing those injuries under WCL Section 28. The law judge held that the claimant did not raise these injuries in his C-3 forms and the first time the sites were raised was nearly three years after the subject accident. Further, the law judge determined that the mechanism of injury associated with this claim did not support a finding of causally related injuries to the claimant’s neck, shoulders, and both wrists based upon the medical evidence in the record and the claimant’s own testimony. As such, the law judge disallowed claims for the neck, shoulders, and wrists.
CASE: TJ v. BSC
CLIENT: A Self-Insured Employer
DATE OF DECISION: August 2020
LOIS ATTORNEY: Joseph Melchionne, 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.