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LOIS Attorney Kristine Rosales Wins on Labor Market Attachment in New York

LOIS Attorney Kristine Rosales and LOIS Paralegal Andrea Hayles secured a labor market attachment win in a New York Workers’ Compensation case against a Claimant who was directed to produce job search proofs. During trial, Attorney Rosales impugned the credibility of the Claimant during cross-examination, whereby she elicited favorable concessions, including that the Claimant did not know his work restrictions; that his applications to jobs did not correlate to his experience, qualifications, or capacity to perform; that the Claimant attended ACCES-VR appointments only five days before the hearing; and that there was no follow-up on his job applications. Rosales maintained that there was no good faith effort in the job search based on the Claimant’s failure to look for work within his medical restrictions, failure to actively participate with an employment agency, and failure to show that the job search was independent, timely, diligent, and persistent.

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LOIS Achieves Disallowance by Reaffirming the “Coming-And-Going” Rule

LOIS Senior Associate Adam Lowenstein successfully argued that a motor vehicle accident was not compensable under the New York Workers’ Compensation Law. The Claimant alleged that an accident took place while she was taking an Uber to work in light the accident occurring at the entrance to the employer’s premises. Alleged injuries included the neck, back, right shoulder, left shoulder, right hand, right wrist, left hip, left knee, consequential depressive disorder, anxiety disorder, cognitive disorder, and post-traumatic stress disorder. Lowenstein’s investigation revealed that that the Uber was not paid for by the employer, nor was directed to be used as transportation. It was confirmed that the Claimant worked at a fixed location, did not bring any work home with her, and was not a portal-to-portal employee. Moreover, the Uber was not yet on the employer’s premises, nor was the other vehicle involved related to the employer. Lowenstein then disclosed video footage of the alleged incident in question and admitted same into evidence.

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Disallowance Secured in Light of Claimant’s Unbelievable Testimony

LOIS Associate Attorney Kristine Rosales and LOIS paralegal Andrea Hayles collaborated to successfully secure disallowance of a New York Workers’ Compensation claim. The Claimant testified that his face was struck by a hose pipe while cleaning it, that he lost consciousness for 20 minutes thereafter, and then that he fell off a roof. The employer-witness provided completely contrary testimony, noting that the Claimant had not reported any accident, worked an entire month after the alleged accident date, and then thereafter worked for another construction company while concurrently working for GrubHub and UberEats. Despite this contrary testimony, the Claimant’s argument was that the Independent Medical Examiner (IME) conceded causal relationship between the complaints and the alleged injuries.

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LOIS Wins on Credibility Findings at Trial

The claimant alleged a work related injury occurred on May 16, 2023 wherein he was unloading and loading a truck and experienced pain, injuring his lower back, right leg, and right great toe. While the claimant is still attached to the employer, he has not returned to work since the date of injury. This claim was controverted.

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LOIS Obtains Permanent Disqualification Result Due to Claimant’s Omission

LOIS Senior Associate Stephen McLinden secured a favorable WCL Section 114-a finding, resulting in a permanent disqualification for all future indemnity benefits. McLinden obtained this finding by highlighting the material misrepresentations and omissions that the Claimant characterized as not understanding the “fine print.” The Claimant in this matter received a permanency award in SLU in June 2020 after achieving maximum medical improvement. Thereafter, the Claimant began treating with a new surgeon, who requested for surgery in 2021 and 2022. In those requests, the Claimant first disclosed a 2007 motor vehicle accident for which the Claimant underwent previous physical therapy and injections. It was upon this admission, McLinden argued, which was never disclosed between the date of accident and the time she received her SLU award, that a material misrepresentation had occurred.

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LOIS Wins a Favorable Voluntary Removal Finding

LOIS Partner Joseph Melchionne obtained a finding that the Claimant voluntarily removed himself from the labor market, resulting in no awards being directed before a trial on permanency. Melchionne argued that, pursuant to Matter of American Axle, the Claimant’s work search efforts must be diligent, persistent, and timely. In this claim, the Claimant’s work searches were simply Indeed submissions for jobs as a delivery driver and that, based upon the nature of the alleged online searches, the Claimant therefore cannot be completely aware of the specific job duties for each position and whether each job accommodated his current medical restrictions.

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LOIS Proves Claimant’s Testimony Not Credible, Wins Case

LOIS obtains disallowances for two traveling claims with separate dates of loss. Attorney Alexa Cintron was able to highlight key inconsistencies for each alleged accident, as the Claimant submitted contradictory C-3 forms alleging injury to different body sites in each file. The Claimant also withheld key information about prior accidents to his own doctors and failed to discuss specific facts about the alleged injuries with those doctors.

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LOIS Obtains Disallowance of PTSD and Anxiety Claims by Undermining the Credibility of Claimant’s Medical Witness

LOIS Attorney Kristine Rosales successfully argued in written summations for the disallowance of PTSD and anxiety disorder claims following depositions of the IME and claimant’s medical provider. The claim is currently established for injuries to the neck, back, and bilateral knees, and the claimant was seeking to have the case amended to include PTSD and anxiety disorder. During the depositions, Attorney Rosales elicited damaging concessions from the claimant’s medical witness, which zeroed in on her role in the practice. Said witness ultimately conceded that she did not examine the claimant and that her role was limited to documentation for the clients. Further, she conceded that her documentation was based on another clinician’s examination of the claimant. She even conceded that her role in the practice does not include provision of mental health treatment. While she confirmed that there were mental health diagnoses for the claimant, she could not explain the positive findings indicated in her reports.

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