WINNING RESULTS: LOIS Cross-Examines Claimant, Counters Allegations, Proves No Accident Occurred

Lois Law Firm Senior Associate Nicholas Minerva obtained a victory in a New York Workers’ Compensation claim where the Claimant could not cogently establish a date of accident. The Claimant initially alleged an accident that occurred on April 2, 2023, with the first date of treatment April 4, 2023. The Claimant testified that she injured herself on April 2, 2023, while lifting a patient into a Hoyer lift, contradicting the mechanism listed on her Form C-3 of the lifting of the Hoyer lift itself to clean underneath. She also denied telling anyone at her job that she was injured but indicated that she “thinks they know.” She claims she told her employer over the phone but did not remember when. The Claimant also denied any prior back injuries and also denied any mechanism of injury involving the lifting of a Hoyer lift to clean underneath. She also denied ever treating prior to April 4, 2023. Minerva then raised a WCL Section 114-a defense, noticing that on the April 4, 2023, report, it listed medications prescribed a month earlier on March 2, 2023, for back pain. At that point, the Law Judge stopped testimony and advised the Claimant to speak with her attorney prior to continuing testimony.

At the most recent hearing, Minerva again asked about the date of loss. The Claimant now testified to a date of accident of March 27, 2023. The mechanism of injury also changed to indicate that the Claimant was transferring a patient to the Hoyer lift when the accident occurred. She could not explain the new date of injury being provided. She then conceded that she had injured her back at a prior employer sometime between November 2022 and February 2023. She could not explain why the change in testimony. When asked whether she injured herself lifting a Hoyer lift to clean under it, she could not answer the question. Based upon the wildly inconsistent testimony, the Law Judge found that the Claimant could not even establish a date of accident and disallowed the claim entirely.