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WINNING RESULTS: Attorney Connor Wetherington Prevails In Credibility Trial in New York

LOIS attorney Connor Wetherington was successful in getting a bilateral knees claim disallowed by a New York Workers’ Compensation Judge due to conflicting histories, mechanisms of injury, and improper notice. At trial, through effective cross-examination of the claimant and presentation of an employer witness, Wetherington showed that claimant was aware of the injury reporting process and failed to complete an incident report.

LOIS was able to emphasize numerous discrepancies between the claimant’s testimony, his medical reports and his claim form (Employee Claim Form, Form C-3). While the claimant insisted that an accident occurred and that notice was provided on the day of the alleged accident, the law judge determined there was insufficient evidence that a compensable injury occurred and that LOIS successfully rebutted the Workers’ Compensation Law Section 21 presumptions. Notably, the law judge stated that even if the claimant were found to be credible, she would have found that there was no timely or proper notice and as a result, the employer and carrier were prejudiced.

This claim involved an alleged work-related accident that took place on September 18, 2018 involving alleged injuries to the bilateral knees. However, the claimant did not file the claim until October 3, 2019. He also did not seek medical treatment until December 2, 2018. Further, the claimant conceded on the C-3 that he provided notice to his supervisor on December 4, 2018. Pursuant to WCL Section 18, claimants are obligated to provide notice of traumatic accidents within thirty (30) days. As such, we denied the claim in its entirety at the initial hearing held on February 3, 2020 on the basis that the claimant failed to provide timely or proper notice of the accident.

We then returned on March 5, 2020 for the testimony of the claimant and our employer witness. During direct examination, the claimant testified that he was putting together a metal ladder, went to pick it up, and his right knee “bent weird.” But the claimant conceded to not mentioning the injury until three (3) months after it occurred. The claimant also conceded that he did not seek treatment until December 2, 2018. Notably, the claimant alleged that the employer paid for the initial hospital bills, which would be considered acceptance of liability of the claim. Prior to the start of our cross-examination, the Law Judge stated that the time allotment had been exceeded and the matter was continued.

In preparation of the next hearing, we continued preparing our employer witness for his testimony. It was confirmed that the claimant never reported an injury; employees are informed of the injury reporting process; the employer was not aware an accident occurred until notified by the carrier; and the employer never paid for any hospital bills. We returned on April 5, 2020 for further testimony, but technical difficulty, the matter again had to be continued. At this point, the employer witness became frustrated because he was having to take time away from work to testify. However, after multiple phone calls, we convinced the employer witness to appear.

On May 22, 2020, we were able to cross-examine the claimant. The claimant conceded that he was aware of the injury reporting process and that he was required to complete an incident report. The claimant then conceded that he did not complete an incident report. We then took the testimony of our employer witness. Our witness confirmed the existence of the injury reporting process and that the company never paid for hospital bills. We also illustrated how the carrier and employer was prejudiced by the claimant’s failure to file an incident and by not filing this claim until one year and nine months after the alleged accident. Once testimony was completed, we made oral summations arguing the claim should be disallowed. Specifically, we argued that there was insufficient evidence to support a work-related accident in this matter as the claimant’s testimony was confusing and contradictory as to the mechanism of injury. Further, we argued that the claimant failed to provide the employer with sufficient notice under WCL Section 18, which created undue prejudice was placed on the employer and carrier.

Finally, the Law Judge ruled that she did not find the claimant to have an accident arising out of the course and scope of employment. Our employer witness was deemed more credible than the claimant. The Law Judge also found that we successfully rebutted the WCL Section 21 presumptions. Notably, the Law Judge stated that even if the claimant were found to be credible, she would have found that there was no timely or proper notice and as a result, the employer and carrier were prejudiced.

Therefore, the Law Judge disallowed the claim in its entirety.

Case Information

  • CASE: JH v. BMMS
  • CLIENT: A National Insurance Carrier
  • DATE OF DECISION: May 22, 2020
  • LOIS ATTORNEY: Connor Wetherington
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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.

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