LOIS Trial Attorney Stephen McLinden obtained a major victory on a Board Panel review that required both careful trial planning and persistence by the litigation team as well as a stellar brief on appeal to ultimately prevail.
The claimant alleged that in October of 2018, a one(1) pound shower rod fell on her upper shoulder and neck while she was working as a housekeeper at a New York hotel. She alleged, initially, that this shower curtain injured her head, neck, both shoulders, and back. She alleged that the shower curtain striking her neck caused her to become so dizzy that she needed to sit on the floor until security and an engineer arrived.
The claimant attended an IME and reported no prior accidents, work-related or otherwise, she reported only unrelated prior medical history (a hernia surgery and a history of diabetes and arthritis). Based upon the history provided by the claimant, diagnosed sprains or strains to the cervical spine, the lumbosacral spine, and the right shoulder.
We did extensive research on FMLA and disability issues. Our paralegal working with him on the file sent out numerous subpoenas for some of those records, which began to illuminate some of the medical history.
As it turned out, the claimant had treatment through early 2018, including an MRI showing degenerative disc disease and multi-level Diffuse Idiopathic Skeletal Hyperostosis. She had also applied for FMLA benefits for a period of six months that would have extended to the date of the reported accident. The claimant had also applied for disability benefits on for pelvic pain and for a lower back injury in 2018. Our office was not privy to all of the FMLA and medical records, but it was clear that the claimant had an extensive history of complaints and medical attention to some of the sites reported here. She also underwent numerous surgeries before and after the accident, including a right shoulder surgery and a colonoscopy. The claimant also had a history payments and benefits through other means. In fact, a medical report returned contained the history, “she will see if she can convert this to workers’ compensation. She is currently on disability but apparently has run out.”
Upon cross-examination, the claimant was directly contradicting herself. The claimant had conceded numerous elements of a history on cross-examination that had not been revealed to the IME. Nonetheless, the law judge established the claim. The Board panel reviewed the audio of the claimant’s testimony. The claimant testified both to never having treatments to the neck or back before the October 2018 accident, and to treating for the neck for 10 years prior. The Board Panel notes that the post-accident MRI was substantially similar to the MRI from April 2018, six months prior to this accident, and as a part of her FMLA claim.
Our paralegal requested suggested a more recent ISO report, which uncovered new information, which we were able to re-review based upon what we knew from the other subpoenas. Our paralegal also repeatedly followed up with claimant’s counsel for HIPAA releases from the claimant until they complied to facilitate the process of obtaining further records via subpoena. We then filed written summations following the deposition of our IME, wherein we were able to supply the Board with even more information.
The Board Panel noted that the post-accident MRI was substantially similar to the MRI from April 2018, six months prior to this accident, and as a part of her FMLA claim. Even though the Board panel accepted that the unwitnessed accident as it was reported may have happened, with the 1 lb. shower curtain falling on the claimant, it also found the claimant was so intensely incredible as to her history, that, in turn, every treating doctor and the IME’s reports could not be relied upon.
The outcome was great for our client, which insured the hotel where the claimant had been employed: the claim was disallowed for the neck and back that had been established at the hearing, all disputed medical bills were found in the carrier’s favor, and the claim is now closed.
- CASE: IB v. VPM
- CLIENT: A National Insurance Carrier
- DATE OF DECISION: June 1, 2020
- LOIS ATTORNEY: Stephen T. McLinden