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Congratulations to Jones Jones Supervising Partner Rosanna Shamash and her team on the successful appeal of a workers’ compensation law judge’s (WCLJ) decision in front of the New York State Workers’ Compensation Board (NYSWCB). This appeal reversed the claimant’s status as seeking employment in good faith, and instead, limited the claimant’s rights to benefits, opening the conversation for settlement.

In this case, the claimant received injuries to their right ankle with the most recent independent medical examination (IME) report stating a 75% degree of disability. At a previous hearing, the WCLJ found the claimant to be seeking employment in good faith and continued the awards. Despite the continuation of awards, the WCLJ also previously granted Shamash’s application to cross-examine the claimant.

In preparation for this hearing, Shamash dissected approximately 100 pages of the claimant’s submitted work search documents and googled each job posting to verify their requirements.  When questioning the claimant, Shamash asked about the job requirements for each listing and was able to show that the claimant’s experience clearly did not align with the jobs listed. Additionally, the claimant had not submitted any current evidence of a good faith work search from the time between the previous hearing and the most recent hearing. It was made clear that the claimant had been arbitrarily applying for jobs.

When asking the claimant about documentation from an employment center they had visited, the claimant shared that they only visited the center to use their computers and apply for jobs. The claimant did not meet with any job counselors or attend any workshops while visiting the center.

Shamash’s thorough research and close attention to detail contributed to securing the team’s win and paving the way to a settlement with the claimant in this case. If you are in need of assistance with a workers’ compensation case, please contact our appellate team at concierge@jonesjonesllc.com. 

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Jones Jones LLC congratulates Associate Kevin Moy and his team on successfully rebutting an administrative review of a Workers’ Compensation Law Judge (WCLJ) decision.  

In this case, the claim was previously established for injuries involving the claimant’s right wrist and hand, both knees, right foot and right shoulder. Two independent medical examiners (IMEs) assessed the claimant. The first IME evaluated the claimant in 2022, and after several visits examining the injuries, conducted a permanency exam assessing 70% SLU of the right shoulder.  

In a deposition facilitated by Jones Jones Associate Samantha Sokoloff, the IME noted the claimant’s extreme range of motion deficits due to forgoing surgery to the right shoulder, and inflammation that waxes and wanes with the weather influenced their assessment. A second IME later examined the claimant and assessed a 20% SLU of the right arm, and 10% SLU of the left leg. The WCLJ deemed the second IME more credible, and their assessment was used in the deliberation.  

In its application for administrative review, the claimant argued the WCLJ had erred in deeming the first IME’s testimony as less credible. Moy and his team contended the WCLJ’s decision should be affirmed as the first IME’s findings were inconsistent due to basing their assessment on the claimant’s range of motion changing day to day and did not consider that the claimant had previously returned to work without restriction before gaining an additional injury. The team also shared that the first IME had included consideration of mild abnormalities in internal/external rotations in his original opinion, conflicting with Chapter 5.4 under the 2018 impairment guidelines, which states these considerations should not be added to avoid cumulative values.  

Moy and his team’s extensive research, along with Sokoloff’s thorough questioning, secured an affirmation from the Board on the WCLJ’s original decision. If you require assistance with a workers’ compensation case, please contact our appellate team at concierge@jonesjonesllc.com.  

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Jones Jones LLC congratulates Associate Diane Mandleur on successfully reversing a decision regarding restarting and continuing awards in front of the New York State Workers’ Compensation Board.

In this case, the claim previously established injuries to the claimant’s left ankle and foot with a temporary moderate degree of disability. The claimant’s podiatrist later stated the claimant had 100% degree of disability. In a later hearing, the workers’ compensation law judge (WCLJ) directed the claimant to submit proof of labor market attachment, such as job applications, due to concern from the self-insured employer (SIE) . The WCLJ determined the claimant had provided sufficient proof of labor market attachment and awarded benefits for the corresponding period of time.

When appealing the decision, Mandleur researched each individual job posting submitted by the claimant and calculated the distance and time it would theoretically take them to get to work. Of the 96 job applications filed, 71 of the locations were at least 45 minutes from their home with numerous employers an hour and a half away. This distance would make it difficult for the claimant to work these jobs as they do not have a car or drive.

Additionally, the claimant did not participate in reemployment services or vocational programs that qualify as displaying labor market reattachment under American Axle. As a result, the WCLJ found that the record did not support a finding of a good-faith job search in support of continuing awards.

Mandleur’s diligent research and close attention to detail secured a reversal of the decision. If you are in need of assistance with a worker’s compensation case, please contact our appellate team at clientservices@jonesjonesllc.com.

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