Category: Firm Events

John Land developed the record and obtained the fraud finding in this case, which involves an established claim for the back. The claimant testified that his son owned a coffee shop and that he gave his son money to start the business as well as business advice. He testified that he did not work there, but just hung out with his friends and did not even know how to operate the cash register. He claimed that he would help out at the store but did not work there.

Meanwhile, surveillance showed the claimant making a presentation at the town clerk’s office to obtain a permit for the coffee shop. He was shown moving items into the coffee shop. On the opening day of the business, he was seated at the shop all day. He assisted with cleaning up at the store. A few days later, he was seen working at the shop and going on a ladder to assist with the sign. In the same timeframe, he was seen arriving in the morning, waiting for customers behind the counter, and counting out the cash register.

The claimant told both his own doctor and the carrier’s consulting physician that he was severely disabled and in pain. After seeing the surveillance, however, the carrier’s consulting physician testified he believed that the claimant’s actions did not match his presentation at the exam.

In imposing a lifetime ban on indemnity benefits, the judge held that the claimant was in violation of the Workers’ Compensation Law fraud provisions as he was actively performing business activities while claiming workers’ compensation benefits and was untruthful about this in his testimony. The judge wrote that he was seen actively participating in the business, essentially running it from open to close, waiting on customers and working at the register on any given day, which he falsely denied when he testified.

The judge imposed a lifetime ban on benefits, noting that the claimant flatly denied working at the business and stated he did not even know how to work the cash register. The judge noted that on 12/28/23, the claimant alleged a 9/10 pain level and asked for a note to retire from his doctor, having worked a full day at the coffee shop less than a week before.

John was able to marshal the surveillance evidence and testimony of the claimant and the carrier’s consulting physician. In short, he was using the old “bean.”

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Attorneys Ellen Shanahan Becker and Thomas Videon of our office worked together on this matter to obtain disallowance of a claim of consequential shoulder injury in this dog attack case. The claimant was attacked by a dog in the course of his employment. He was bitten in the bicep, and soon after complained of right shoulder pain, alleging that the dog attack had also caused an injury there.

Ellen and Thomas were able to develop the record to show that this claimant had a pre-existing condition in the right shoulder. Their persistence in obtaining records of treatment prior to the date of injury enabled them to effectively cross-examine the doctors on the issue of a shoulder injury.

After the Law Judge disallowed the shoulder claim, the claimant appealed, and the Board Panel agreed with the Law Judge and our firm’s argument. The Board Panel noted that one treating doctor admitted during testimony that he did not have enough information to state that the trauma from the dog bite exacerbated or aggravated a pre-existing condition in the claimant’s shoulder. Another doctor was not even aware that the claimant had previously been treated for a right shoulder injury and did not review any of the claimant’s prior treatment records. He was not aware of the claimant’s prior injury–a fall in a garage on his right arm–so he could not form an opinion on a causal relationship.

Our client’s consultant noted that the claimant had pre-existing chronic right shoulder rotator cuff arthropathy. He indicated that it would be expected the claimant had restrictions of range of motion prior to his work accident. He found the claimant’s shoulder condition to be unrelated to his work accident, and both the Law Judge and the Board Panel credited this opinion, twice disallowing the right shoulder claim.

Ellen and Thomas proved that by hounding providers for prior treatment records and then approaching cross-examination of the doctors with dogged determination, they can achieve an excellent result for our clients.

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In a recent case, Brian Schaedler of our firm obtained disallowance of a claim for tinnitus at the Law Judge level, and also obtained an affirmance of that opinion on appeal to the Board Panel. The claimant in this case was injured in an elevator that went into freefall and then stopped suddenly. There was no dispute that the claimant had injuries to her neck, back, and a traumatic brain injury. The claimant had also later alleged causally related tinnitus– ringing in the ears.

Brian obtained testimony from both the treating physician and our client’s consultant. As the Board Panel pointed out in evaluating the appeal, the consulting physician opined that tinnitus is a subjective sensation of sound either in an individual’s head or ears. The panel credited the doctor’s further testimony that the only way to confirm the diagnosis is to administer an audiological exam. In this case, as Brian elicited through the testimony of the physicians and argued to the judge below, the mere complaint of tinnitus is not enough to provide a diagnosis. An audiological examination a few months after the injury showed that the claimant’s hearing was normal. No physician diagnosed any inner ear damage which would have been indicative of tinnitus. Most important, as Brian pointed out, neither the consulting physician nor the claimant’s own doctor could assign the cause of the complaint of tinnitus definitively to the work accident. The treating doctor, in particular, upon cross-examination conceded that he could not offer any opinion on causation either at the time he wrote his report or during his testimony.

Like all of the attorneys at Hamberger and Weiss, Brian has an “ear” for questionable claims and knows how to sound out favorable testimony from the doctors to give our clients the best opportunity to prevail. 

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The injured worker in a recent case remained on her employer’s payroll and in fact was cleared to return to work by her own doctor. The employer’s physician, however, would not clear her to return to work. Although the injured worker made some attempt to look for work elsewhere, she relied on her continued employment relationship to argue that she maintained attachment to the labor market and therefore was eligible for benefits.

John Land of our firm argued that the claimant was not entitled to benefits as she had no realistic expectation of returning to her job and her efforts otherwise to look for work were insufficient. The Workers’ Compensation Law Judge agreed and found no entitlement to ongoing benefits.

John, like all the attorneys at Hamberger and Weiss, keep abreast of the legal requirements for attachment to the labor market. Although continued employment may constitute attachment in a proper case, John zeroed in on the fact that it was highly unlikely that the claimant would ever return to a suitable position with the employer and thus an obligation to look elsewhere began.

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While most claims made under the Workers’ Compensation Law in New York are legitimate, some claimants attempt to use the law in retaliation for legitimate job action. Tori Hahn of our firm successfully prevented a claimant from using the law in this way. After developing the record, the claim for benefits was disallowed at both the Law Judge and appeal panel levels.

There is no doubt that the claimant in this case had an accident at work. She fell to the floor, and the fall was witnessed by coworkers. At the same time, however, the claimant quickly rose to her feet and said that she was fine. She did not seek medical attention for what she claimed was a significant shoulder injury until at least 4 months later, and did not formally report a work-related injury until more than 11 months after the fall.

Tori was able to add to the record credible testimony from our client’s consulting physician. The doctor testified that the serious rotator cuff tear the claimant alleged would have compelled her to seek medical attention immediately after the fall and not months later. Also in the record was a report from the claimant’s primary care physician a few months after the injury, where she advised she had no complaints of pain at the time. This directly contradicted the claimant’s incredible testimony.

In addition to the medical testimony, Tori was able to obtain credible testimony from an employer witness noting that the claimant’s job performance was deteriorating at the same time she initially made her claim for a significant injury. The claimant was placed on a performance improvement plan and eventually terminated when she did not meet her performance goals.

The Law Judge and the panel on appeal were impressed by both the lack of medical evidence contemporaneous with the fall documenting a serious injury, and the timing of her claim of a serious injury in denying the claimant benefits.

While our firm recognizes that injured workers should receive just compensation for their legitimate injuries, we remain vigilant in assisting our clients in defeating claims where unscrupulous claimants attempt to use the law for illegitimate purposes.

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