Morrison Mahoney associate Kristen Pride recently won two cases with the NYS Workers’ Compensation Board. In the first case, Claimant’s counsel argued that notice was timely provided to our client based on testimony provided by two alleged coworker witnesses. During the trial, both witnesses testified that, on the date of the alleged accident, a call reporting the accident was made to our client. The Claimant also submitted evidence of undated text messages allegedly sent to our client as evidence of notice. Our employer witness testified that he never received any text messages or phone calls regarding any alleged accident involving the Claimant.
During the trial, Kristen argued that the case should be disallowed as the Claimant failed to meet the burden of proving timely notice. Alternatively, she argued that the oral notice allegedly provided prejudiced the employer, as it was unable to timely investigate the claim. After a review of the record including the medical evidence, the Judge disallowed the case on grounds of untimely notice and closed the case.
In a second case, the claim was initially controverted by the employer based on the issue of coverage and untimely notice. In November of 2020, Carrier’s consultant submitted evidence of Maximum Medical Improvement (MMI) and permanency impairments. The Claimant was directed to produce a permanency evaluation from his provider within 60 days. Following the deadline, Claimant was directed for a second time to produce a report from his provider, addressing permanency.
A report was later submitted by his provider advising that additional diagnostic testing was needed to determine if permanency was appropriate. After the testing was approved, Claimant’s provider still failed to address in his subsequent reports whether the Claimant was in fact permanently impaired. During oral summations, Claimant’s counsel argued that their medical evidence was sufficient in demonstrating that the Claimant was not at MMI, as he still needed to undergo further diagnostic testing. In response, there was a request for preclusion of the Claimant’s outstanding permanency report as this was the second opportunity to produce the report, and additional diagnostic studies did not prevent a finding of MMI. The Judge agreed with our position and precluded the Claimant from producing his own permanency report and implemented the findings of our consultant.
