How To: Challenging Additional Body Parts In New York

Jeremy Janis
It’s a common problem for employers and carrier in New York workers’ compensation claims: the injured worker gets medical attention and treatment for a specific body part. When they are ready to return to work from that injury, they allege a “consequential” loss – injury to another body part that needs treatment – and remain out of work. We were recently successful in defending against additional sites being added to an accepted claim.  In our case the Board Panel ruled that additional injuries to the neck and back were not causally related to a work-related accident because the claimant did not have contemporaneous documentation of complaints to the neck and back at the time of loss. Here are the facts of our case and practical tips for challenging consequential loss in New York.

The Facts.

In our claim, the claimant fell down stairs on March 9, 2015 and subsequently injured her ankle. The accident was witnessed and accepted. Medical treatment and lost time compensation were provided. The injury to the left ankle was her only complaint for the next month.  Further, she completed and signed an “Employee Claim” form (C-3.0) that she submitted to the Board and only detailed an injury to the ankle.  Finally, a month after the date of the accident, she reported having pain in both the neck and the back for the first time after meeting with a new doctor. The new doctor found that the claimant had a closed dislocation of multiple vertebrae of the cervical, thoracic and lumbar spine.  However, the doctor failed to obtain any diagnostic studies such as an MRI for the neck and back and testified to the same during depositions.   After reviewing deposition transcripts, the Law Judge disallowed the claim to the neck and back.

Claimant appeals.

The claimant appealed, arguing that she had provided credible medical evidence on causal relationship.  The carrier argued that the decision be affirmed.  The claimant did not treat for the additional sites until a month after the work accident and the contemporaneous medical evidence shows the claimant only injured her left ankle at the time of the work accident.  Further, there is no objective testing or diagnostic imaging showing any injury to the neck and back.

Legal Decision.

The Board Panel noted that “it is claimant’s burden to establish a causal relationship between his employment and his disability by competent medical evidence.”  See Matter of Sale v Helmsley-Spear, Inc., 6 AD3d 999 (2004); Matter of Keeley v. Jamestown City School Dist., 295 AD2d 876 (2002).  To this end, a medical opinion on the issue of causation must signify a probability as to the underlying cause of the claimant’s injury which is supported by a rational basis.  Matter of Paradise v. Goulds Pump, 13 AD3d 764 (2004); see Matter of Patten v. Quandt’s Wholesale Distribs., 198 AD2d 539 (1993).

The Board Panel affirmed the decision of the Law Judge, finding that the claimant treated for a month with only complaints of pain to the left ankle.   It was not until a month later at a new doctor that the claimant report pain to the neck and back.   Notably, the claimant filed a C-3 one week before the examination, yet did not claim the neck and back on the form.  Further, although the doctor claimed multiple vertebrae were fracture, there were no diagnostic studies to confirm his opinion.

Applying this decision to your cases.

In summary the Board Panel disallowed the claim for the additional sites for the following reasons:

  1. The claimant only treated for the injury to the left ankle for the first month.
  2. The claimant treated numerous times for the left ankle and presented no complaints of injuries to the neck and back to the initial treating physicians.
  3. A C-3 was filed a week before the claimant met with the new doctor and did not mention the neck or the back.
  4. There were no diagnostic studies or objective tests to support the doctor’s opinion that there were multiple fractured vertebrae in the neck and the back.

For more about this decision or to discuss how to defend against the inclusion of a consequential injury site in a New York workers’ compensation case, contact Jeremy Janis.

Jeremy Janis is an associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. He regularly handles trials and hearings in the Hauppauge hearing point. Jeremy has extensive experience deposing medical professionals and other experts and advising on all aspects of workers’ compensation law. He can be reached directly at jjanis@lois-llc.com or 201-880-7213.