Mary's Story: A Cautionary Tale

It has been yet another week where the New York State Supreme Court Appellate Division Third Department has issued no decisions concerning Workers’ Compensation. This summer has been notably barren in terms of workers’ compensation cases reaching the Third Department. Is there an adage that captures the opposite of "when it rains, it pours"?

But I digress…

In this newest edition of Workers’ Compensation Insights, I wanted to take a slightly different approach. Rather than delving into legal intricacies, I wish to share a case study from a recent experience of mine, serving as a cautionary tale. Rest assured, I have altered all identifying details of the case to ensure anonymity. The essence of my story remains unchanged—seek legal counsel at the earliest opportunity.

Our case study features Mary, who has worked for her employer, Deliveries-To-Go, for a solid 18 years as a delivery driver. Mary spends her days crisscrossing New York City, making deliveries for at least 8 hours daily, five days a week. Over the past couple of years, Mary began noticing persistent issues with her neck. Given her father’s history with neck problems, this wasn’t entirely surprising.

Shortly after she started experiencing neck pain, Mary consulted her primary care physician. Her PCP was diligent in addressing her immediate symptoms, prescribing physical therapy and anti-inflammatory medications while monitoring her condition over several weeks. However, there was no discussion about the underlying cause or origin of Mary’s neck pain.

Recently, Mary connected the dots and realized that her hunched posture while driving the delivery van all day contributed to her neck pain. She sought advice from coworkers and colleagues, and the consensus was clear—if you value your job, don’t file a workers’ compensation claim. Horror stories abounded about friends and former colleagues who filed claims only to face financial ruin. Mary also knew that Deliveries-To-Go’s management frowned upon such claims. Consequently, she refrained from filing one.

As months went by, the pain intensified to the point where Mary feared for her safety while driving. Finally, she consulted a workers’ compensation specialist, Dr. Adams. Dr. Adams took a comprehensive history, noting that Mary had worked as a delivery driver for 18 years, sitting hunched over in her seat for at least 8 hours a day, five days a week, and frequently drove over pothole-ridden and poorly maintained roads, leading to constant spinal compression.

During her recounting to Dr. Adams, Mary recalled an incident nearly three weeks prior when she hit an enormous pothole. The impact lifted her off her seat and slammed her back down, exacerbating her neck pain significantly. Although she hadn’t thought much of it at the time, in hindsight, this event marked a turning point for the worse.

Dr. Adams’ report stated, “Over time, the wear and tear of Mary’s occupation have resulted in significant neck injury. She also experienced a notable incident approximately three weeks ago where she hit a pothole, flew off her seat, and was slammed back down, leading to painful spinal compression in her neck.”

Upon realizing she had suffered a specific work-related incident, Mary reviewed her records, pinpointed the date, and submitted an incident report to her employer. She also completed a C-3 claim form and filed it with the Workers’ Compensation Board. Unsurprisingly, Deliveries-To-Go’s insurance carrier denied the claim. Faced with this denial, Mary sought legal counsel. By the time Mary approached us, she had already been out of work for almost two years.

After numerous hearings, the production and review of two years’ worth of medical records, and extensive testimony and arguments, Mary’s claim was ultimately disallowed. Despite fulfilling the legal requirements to establish her workers’ compensation claim under two distinct legal theories and having the only medical opinion on record, the judge did not find Mary credible. The judge doubted Mary’s trustworthiness because she had experienced neck pain for a few years prior, couldn’t definitively state whether her neck pain was due to cumulative wear and tear or a specific incident, and waited three weeks to file an incident report, not realizing she had suffered a work-related accident until much later. Consequently, Mary not only had no income for the past two years but also faced an uncertain financial future.

Regrettably, this case study is neither uncommon nor unique. Such scenarios occur frequently and highlight several critical points I’d like to discuss.

First, always remember that your credibility is perpetually under scrutiny. While you might not recognize it at the moment, your actions—or lack thereof—will be meticulously examined later. Decisions that seemed reasonable at the time may be perceived as illogical or inconsistent by others down the line. Cases often hinge on credibility. It’s always relevant and should remain at the forefront of your mind.

Second, judges are human beings, just like the rest of us. They have good days and bad, and sometimes they carry personal issues into their professional lives. Although I firmly believe judges strive to do their best, they approach cases with inherent biases, often unconsciously.

The point here is that you could do everything by the book and still lose your case. You might meet every legal standard and burden, yet your claim could be disallowed because someone didn’t find you or your actions credible. This perception of credibility can make or break your case. In workers’ compensation claims, where the outcome is a lifeline for you and your family, the judge’s belief in your credibility is of paramount importance.

Third, and I say this as delicately as possible, insurance companies are not concerned about your well-being. This isn’t a slight against insurance carriers; it’s simply the nature of the business. They focus on their bottom line, which means keeping rates low for their clients and maximizing profits. It’s what every business does.

I hope to offer a unique perspective here. I managed the legal office of New York State’s second-largest self-insured employer for several years. We were fortunate to operate without a bottom line, guided instead by a mandate to do the right thing—a rare directive in the insurance world.

In most cases, you will be seen as a number. Many insurance carriers hire outside attorneys for hearings but grant them no discretion, meaning almost every aspect becomes a battle. You must prepare for this eventuality.

Fourth, obtaining legal counsel promptly is the best way to protect yourself and your family. Had Mary approached us sooner, we could have assisted her in numerous ways—identifying the specific accident date, focusing on her occupational disease claim, or gathering relevant medical records and opinions. We could have intervened before the situation spiraled out of control.

The main takeaway here is to do what is best for you and your family. Protect yourselves. Seeking competent legal representation is often the best way to ensure your family’s lifeline remains intact.

So, as we navigate another dry spell for workers’ compensation cases in the Third Department, let Mary’s story be a sobering reminder of the importance of credibility and the critical need for timely legal counsel.

Until next week,

Levi

929-996-2145