John Land of our office recently achieved disallowance of a second eye injury claim for the same claimant, skillfully using the record developed in the first case several years ago to obtain the same result in the second. The claimant filed an initial left eye injury claim alleging that in 2020, he was cutting metal when a piece of debris entered his left eye. Emergency room treatment immediately after this episode indicated the claimant was treating for a left on a corneal ulcer, but there was no medical narrative or treatment summary provided and no mention of an injury in the right eye.
The treating doctor testified that he first treated the claimant for a reported right eye injury and then for a claim to left eye injury about one week later. The doctor diagnosed mild right eye inflammation and a condition in both eyes related to sun exposure. The doctor noted during his deposition that the claimant was a poor historian and that he had been unable to pin down a good description of the mechanism of injury with respect to either eye. The employer testified in the left eye case that no notice of a work injury – – either to the left or to the right eye – – was ever reported. Following John’s development of the record, the judge disallowed the left eye claim.
The day following the treating doctor’s deposition, the claimant filed another claim alleging the right eye injury, alleged to have occurred six days after the disallowed left eye injury. The Workers’ Compensation Board essentially transferred much of the information from the left eye case into the file for the right eye matter. Although our client was precluded from obtaining an independent medical examination and the employer witness could now not be reached for testimony, John argued that the employer witness had testified several years ago on the left eye case and that the judge should consider the testimony to apply equally to the right eye case. John also argued that the treating doctor’s deposition taken several years ago was also applicable to the right eye claim. The judge credited John’s argument and disallowed the right eye injury case on the same basis as the left eye injury case had been disallowed several years earlier.
John was able to marshal the record he developed in the first case to convince the judge to disallow the second one on the same basis, even though John was handicapped in the second case with no contrary medical and no employer witness present to refute the claimant’s claim. His resourcefulness led to a doubly good result for our client.
