Glenn M. Johnston and Joana Y. Coloma Earn Favorable Verdict in Workers’ Compensation Appeal

New York Partner Glenn M. Johnston and Associate Joana Y. Coloma recently prevailed in the New York State Workers’ Compensation Board, successfully applying for reconsideration of a Board Determination. This application led to the Board rescinding its decision without prejudice and our client owing nothing to the claimant or any of his medical providers.
 
Our client, a major retail furniture business, hired the claimant to work as a part-time merchandise coordinator at a store-front location. Within the first four days of his employment, the claimant alleged sustaining an injury to his right knee while lifting a sofa, followed by pain in his left knee due to an altered gait. He ceased working for our client on the same day.
 
A thorough medical canvass revealed supplemental information missing from the Board file – additional medical records for unlisted providers noting injuries simultaneous with the claim. Mr. Johnston and Ms. Coloma requested and obtained a direction for the claimant to provide authorizations for the release of those providers’ records within fifteen days of the hearing date at which the direction was made.
 
As a result of the expedited handling of the claim and the claimant’s refusal to provide the authorizations, a scheduled Independent Medical Examination took place without the additional medical records, resulting in the IME doctor conceding causation based on the narrative conveyed by the claimant. The doctor also conceded a consequential contralateral knee injury as a result. The exam took place one year and eight months after the alleged accident.
 
After the claim was already established, and after the period to apply for review of the decision had run, the claimant’s attorneys provided partial medical records. These records revealed that the claimant had been cleared to return to work by his doctor two weeks after his accident, yet refused to do so because of conflicting obligations to his independent photography career, which he pursued in addition to his job with our client. These records also reflected several inconsistencies in the claimant’s statements. Two months prior to the start of his employment with our client, the claimant had had a radiograph done of both knees, which compared itself to another bilateral radiograph of the knees from two years prior to the alleged accident. Furthermore, during the claimant’s initial doctor’s visit after the alleged accident, he disclosed that he had had bilateral examinations of his knees with his primary care provider just prior to the alleged accident. Then, one month after the alleged accident, the claimant told his doctor that he had been experiencing pain in his primary knee for about three months, meaning he had pain before he was even hired by our client. At this same time, the claimant had a normal MRI of the knee. During later treatment, the claimant disclosed to another doctor that he had injured his knee while working as a Production Assistant in the entertainment industry. 
 
Further, while the claimant told one doctor that he stopped working due to pain in both of his knees, he did not cite his alleged injuries as the cause of his absence in simultaneous emails with his work supervisor. 
 
Despite New York precedent making it unlikely to have a decision reversed or rescinded once a claim for a site is established, Mr. Johnston and Ms. Coloma applied for a reconsideration of the Board Determination on the basis of the newly acquired information.
 
Mr. Johnston drafted the appeal, establishing that the Law Judge had failed to consider that the absence of medical records may have prejudiced the Independent Medical Examination. Mr. Johnston further argued that, because the claimant had withheld records that he was directed to provide until after the claim was established, the claim should be disallowed; that because the claimant had not complied with the Board’s direction to produce prior medical documentation, the awards directed by the judge were improper; and that even though the claimant’s new attorneys had since produced partial records, the requested authorizations for all of the records had still not been supplied 181 days after the Board’s direction. Further, Mr. Johnston established that new information contained in these previously-withheld records revealed that the claimant was actively receiving treatment for both knees prior to the alleged accident, proving that the claimant had intentionally lied in an effort to conceal the true cause of his injury, and therefore committed fraud.
 
In its decision on our request for reconsideration, the Board rescinded both the establishment of the primary knee, as well as the subsequent establishment of the consequential knee, without prejudice, allowing the claimant to request a hearing to establish the sites following the production of complete records of his bilateral knee treatment prior to the date of the alleged accident. The claimant did not request a hearing, and our client avoided any payment to the claimant or his medical providers.
 
Glenn M. Johnston is a member of the Workers' Compensation team at Manning Kass. He has worked in the area of workers' compensation as both defense counsel and claimant's counsel, and 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.
 
Joana Y. Coloma is a member of the Workers’ Compensation and Special Investigations Unit / Insurance Fraud Litigation teams at Manning Kass, and she is currently a member of the New York State Academy of Trial Lawyers.