LOIS attorney Nicholas Minerva recently won a decision favorable to his client, a national insurance carrier and their insured, in a case involving concealment of prior medical history shown at trial. The Court ruled that the claimant had committed fraud and as a result, all benefits issued were rescinded.
The claimant raised the neck as an injured body part in his Workers’ Compensation claim. Prima facie medical evidence was found for the same, and the Carrier was directed to produce an Independent Medical Evaluation (IME) to comment on causality. Although the IME found the alleged neck injury to be causally related to the claim, an ISO report we had procured, revealed a prior Workers’ Compensation claim from 1999 involving the neck. The claimant failed to document this prior injury on his C-3 and further failed to apprise our IME of the prior neck injury when our IME was forming an opinion regarding causality.
As such, we raised the issue of fraud (a violation of Section 114-a) on the claimant and requested his testimony regarding his failure to report the prior injury. The case was then continued for the claimant’s testimony.
At the subsequent hearing, the claimant testified that he did not recall the prior injury even though he had missed several months of work due to the same. Unfortunately, the WCLJ found the claimant’s testimony credible and entered a finding that the claimant had not engaged in fraud. We then appealed that decision.
The Board Panel then issued its Memorandum of Decision which modified the WCLJ’s decision to find that the claimant did make a material misrepresentation in violation of Section 114-a, thus committing fraud. Specifically, the Board Panel found the claimant’s assertion that he did not recall the claim implausible and noted that the claimant had informed his own doctor of the prior injury but failed to disclose that same injury on the C-3 filed one month prior.
Therefore, the Board Panel modified the WCLJ’s decision and entered a finding that the claimant had violated Section 114-a of the Workers’ Compensation Law. In doing so, the Board Panel imposed the mandatory penalty and rescinded all awards that were at least partly directly related to the claim for the neck.
CASE: JH v. BMMS
CLIENT: A National Insurance Carrier
DATE OF DECISION: July 21, 2020
LOIS ATTORNEY: Nicholas Minerva, 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.