Glenn M. Johnston Succeeds Again in the New York Workers’ Compensation Board

New York Partner Glenn M. Johnston earned yet another defense verdict in the New York State Workers’ Compensation Board. This case arose from the claimant’s allegations that he sustained psychological injuries resulting from unfair treatment during his employment as a union doorman/concierge for a property management company. Mr. Johnston successfully argued against the claimant’s grievance, effectively showing that the claim was impermissible under New York law and further contained evidentiary concerns. This defense ultimately led to the Board’s disallowance of the entire claim.

Mr. Johnston’s defense consisted of a denial of the claimant’s claims on the basis of a New York law specifically exempting purely psychological injuries arising out of an employment action taken in good faith. He backstopped this legal foundation with evidence that this claimant had, in fact, been terminated for job abandonment after refusing to return to work, supplemented by further evidence that the claimant had previously been disciplined for aggressive behavior. 

The case proceeded with 11 hearings, which led to the pro se claimant eventually retaining counsel, the revocation of a causal relationship determination resulting from the claimant’s use of non-approved mental health providers, and repeated attempts to obtain the claimant’s testimony. However, through diligent review of the documents filed by the claimant and his eventual counsel, Mr. Johnston was able to establish a timeline of events that laid out a clear case for disallowance. 

Specifically, at the first hearing during which the claimant was cross-examined, he outright denied having ever been disciplined during his employment with our client. Mr. Johnston gathered employment-related documents signed by the claimant, which referred directly to his past disciplinary transgressions and his failure to maintain the necessary certifications for his job. Mr. Johnston also obtained a form that contained a recommendation for the claimant to sustain a two-day suspension at a date to be determined. This form was given to the claimant on the day he allegedly left work due to his depression over wrongful termination. Additional discovery uncovered a series of texts between the claimant’s coworker and their mutual supervisor, through which the claimant threatened his coworker with physical violence.

In the following hearing, during which the claimant was examined and relevant facts were evaluated, the claimant continued to insist that our client was responsible for producing video evidence of his aggressiveness during the final disciplinary event. At every subsequent hearing, Mr. Johnston had the claimant’s supervisor on call, available to testify in support of the defense.

On several occasions, and prior to the establishment of a claim, our client had agreed to a reasonable settlement to fully resolve the claim. Each of these offers were rejected by the claimant, despite both his counsel’s urging to settle and Mr. Johnston’s advice that the claim was not payable. 

Just prior to the tenth hearing, Mr. Johnston submitted a closing argument regarding the claim’s compensability, detailing the relevant law underlying the denial of purely psychological claims arising from lawful personnel actions, the claimant’s history of disciplinary issues, and the claimant’s termination for job abandonment, rather than as a result of disciplinary issues. 

After all of the hearings, extensive review of the facts presented through the claimant’s testimony, and video and text message evidence showing the claimant’s aggression, the Law Judge found in our client’s favor and disallowed the entire claim.

Glenn M. Johnston is a member of the Workers' Compensation team and has worked in the area of workers' compensation as both defense counsel and claimant's counsel. He has handled multiple board appeals, requests for full board review before the New York State Workers' Compensation Board, and appeals to the New York State Supreme Court.