Trial Win: Lois Attorney Andrea Abudayeh Prevails with Unrelated Wage Loss Argument

Claimant was a clerical worker who filed FMLA paperwork alleging an injury to her neck. Shortly thereafter she was diagnosed with bilateral carpal tunnel syndrome. We raised the issue of unrelated wage loss at the initial hearing.

At trial before the Workers’ Compensation Board, trial attorney Andrea Abudayeh aggressively argued that claimant voluntarily removed herself from the labor market. In furtherance of this argument, we produced all FMLA paperwork to the board’s file. We asked specific questions to claimant and her doctor regarding the initial treatment and reason she went out of work in the first place. Due to our thorough understanding of this matter and strategic cross-examination of claimant’s doctor we got the doctor to concede that claimant stopped working due to an unrelated condition to her cervical spine. Claimant’s expert doctor admitted that he did not diagnose the carpal tunnel syndrome until weeks after the claimant stopped working. The doctor also conceded that the claimant’s neck condition has nothing to do with her work duties.

At the trial claimant denied any condition to her neck. The claimant stated the condition to her hands causes radiation and that she only stopped working due to her hands. She testified she had complained about her hands to her supervisor and this was the sole reason she could not perform her work duties. Despite claimant denying she ever complained of anything do to with her neck, this fact was well documented in the FMLA paperwork and all initial medical reports as well as the treating physician’s concessions on deposition.

Our adversary’s arguments focused on the fact that our IME conceded a disability. Even in their appeal, claimant’s counsel focused on the fact that claimant has some impairment to her hands. We argued that this alone is not enough to satisfy the threshold for causally related lost time. For claimant’s lost time to be compensable, she had to have stopped working due to a causally related disability. In this instance, claimant stopped working due to an unrelated cervical condition as evidenced by the submitted paperwork and the admissions of her own doctors.

The Law Judge agreed with our argument that claimant bears the burden of establishing causal relationship between her condition and her disability and lost time. This fact was affirmed on appeal. As such, claimant’s lost time was found to be unrelated to the underlying condition and she is not entitled to awards.

Defending Employers in New York, New Jersey, and Longshore.