WINNING RESULTS: LOIS Proves Deceit regarding IME Appointment, Obtains Mandatory Penalty

Lois Law Firm Associate Natalia Verde secured a victory after proving a WCL Section 114-a defense in a New York Workers’ Compensation claim. The Claimant alleged injury after carrying dishes to the dishwasher and slipping on a wet floor, and the claim was established to the neck, back, right shoulder, right elbow, right wrist/hand, right knee, and right ankle. The Carrier scheduled three (3) separate appointments with an Independent Medical Examiner (IME), and the Claimant did not attend any of the appointments. Verde subsequently requested that awards be suspended after three missed appointments, arguing that the Carrier’s right to an IME was frustrated by the repeated non-attendance. When the Law Judge asked why the Claimant did not attend the third IME, the Claimant stated that she was ten minutes late and was told that the doctor was not there to examine her. The Law Judge felt that the Claimant’s reasoning was reasonable and continued awards.

Verde filed an appeal on behalf of the Carrier with an affidavit of new evidence. The new evidence included a note from the IME doctor’s office reaffirming that the Claimant was not there and that, had the Claimant arrived late, she would have been seen. Verde argued that not only was the Claimant obfuscating the Carrier’s right to obtain an IME, but also lied under oath in light of the submitted new evidence. The Board Panel ultimately agreed with Verde’s position, relied on the new evidence, and held that the Claimant unreasonably frustrated the Carrier’s right to examination. The Board Panel found that the Claimant made a material misrepresentation under WCL Section 114-a and suspending awards as of the missed IME appointment. The Board Panel found that the mandatory penalties applied and rescinded all awards attributable to the Claimant’s false statement made. This resulted in total savings of $35,926.20.