The "It's All Your Old Injury" Play — and How a Laborer Hit by a Paving Machine Beat It

Workers’ Compensation Defense Playbook Decoded — Friday catch-up edition, May 22, 2026

Thursday got away from me. A Friday newsletter is better late than never, so here we are. Thanks for your patience.

The Third Department didn’t release any workers’ comp decisions today, so we’re reaching back to a case the court handed down earlier this year that hits one of the most common defense plays in the entire playbook — and one I want every injured worker reading this to recognize the moment they see it. The case is Matter of Hummer v. Riccelli Enterprises, Inc. (CV-25-0026, decided February 11, 2026).

If you have ever hurt your back before — even years ago, at a different job, for a different reason — or if you’re like me, you hurt your back doing things like standing, walking, and sleeping — this case is for you.

Setup: A paving machine, an old injury, and a brand-new problem

Robert Hummer was a laborer. On May 31, 2022, he was raking asphalt for Riccelli Enterprises when a paving machine ran into him. The accident hurt his lower back.

Here’s the wrinkle that the defense was about to weaponize: Hummer had hurt his back before. Back in 2017, at a different job, he had injured his lower back. He had degenerative changes in his spine. He took medication. He treated. But — and this matters — those prior issues caused symptoms on the left side of his body, and with treatment they did not stop him from doing his job or living his life.

The 2022 paving-machine accident produced something different: a twisting injury and contusion to the right mid-thoracic back. New symptoms. Right side. Caused, his treaters concluded, by the new accident.

The carrier still controverted the claim. Two grounds: (1) the accident didn’t happen, and (2) even if it did, this was really just his old 2017 injury bothering him again.

The Workers’ Compensation Law Judge rejected both arguments and established the claim. The carrier then sent Hummer to an independent medical examination — and that’s where the defense playbook really opens up.

Defense Move: Get an IME doctor to say the new injury “resolved”

This is the most common defense play in New York workers’ compensation, and it has a specific shape. Once a claim is established, the carrier doesn’t keep arguing the accident didn’t happen — that ship has sailed. The new fight is over how long the carrier has to keep paying.

So the carrier schedules an IME. An IME is what New York calls an “Independent” Medical Examination, even though the doctor is hired and paid by the carrier. (We can talk another week about the word “independent.” I have many thoughts and even more feelings about it.) The IME doctor’s job, from the carrier’s perspective, is to read the chart, examine the worker briefly, and write a report that says some version of:

The injury from the work accident has resolved. Any ongoing symptoms are due to the claimant’s pre-existing condition.

That is the play. If the carrier can convince the Board that the work injury is over, ongoing benefits stop, even though the worker is still hurting. The pre-existing condition becomes the convenient explanation for everything that’s left.

That is exactly what happened to Hummer. The carrier sent him to an orthopedic surgeon in June 2023. The orthopedist’s opinion: the 2022 lumbar strain was no longer symptomatic, and any continuing symptoms “were more likely due to his preexisting, underlying problem.”

The Workers’ Compensation Law Judge bought it. The Judge ruled Hummer no longer had an ongoing causally-related disability and cut off benefits.

If the story stopped there, Hummer is out of work, still hurting, and out of luck.

Counter: The nurse practitioner who actually examined him

The story did not stop there. It went up on administrative review to the Workers’ Compensation Board, and the Board reversed the Judge.

Here is the move that won the case, and it’s worth slowing down on, because if you understand it, you understand how to fight the “your old injury did it” defense in almost every claim.

Hummer’s regular treater was a nurse practitioner. She had been seeing him before and after the 2022 accident. She had something the carrier’s IME orthopedist did not have: a longitudinal picture of his body. She knew his old symptoms. She knew where they were located (left side). She knew what they did and didn’t keep him from doing (he was working full duty as a laborer). And after the 2022 accident, she could see clearly that something new had shown up — a twisting injury and contusion on the right side, producing new symptoms in a new location.

That is the distinguishing principle right there. A pre-existing condition is not a magic blanket the defense can throw over every symptom you’ve had since the accident. If your treater can show the new injury produced new symptoms — different location, different mechanism, different functional consequences — the carrier’s “it’s all your old back” theory falls apart.

Even the carrier’s own orthopedist admitted under deposition that it was “difficult to differentiate” between the old and new injury and that he could not “say with [100%] accuracy” which was responsible for the ongoing disability. That admission did real damage. Translation: the IME doctor could not rule out that the work injury is still causing the disability.

The Board credited the nurse practitioner over the orthopedic surgeon, found a continuing causally-related marked partial disability, and awarded ongoing benefits.

The Appellate Division affirmed on February 11, 2026. The key sentence from the decision:

“The Board resolved the credibility question raised by these conflicting opinions by crediting the opinion of the nurse practitioner that claimant’s ongoing disability was connected to the injuries he sustained in the 2022 accident…”

Two things to flag for any injured worker reading this:

1. The treater outranked the IME doctor. A nurse practitioner who actually treated the worker over time beat a board-certified orthopedic surgeon who examined him once for the carrier. That is the Board doing its job — weighing credibility. It is not automatic. You have to give the Board a reason to credit your treater.

2. The carrier’s IME doctor sank himself with one honest answer. When the orthopedist admitted he could not say with 100% accuracy which injury was responsible, he handed the Board the wedge it needed. If the IME doctor cannot rule out work causation, the doctrine of substantial evidence gives the Board room to find for the worker.

Takeaway: For the injured worker

If you have a prior injury — to your back, your knee, your shoulder, whatever — the carrier is going to try the “it’s all your old injury” play. Plan for it. Three concrete moves that will help you when they try:

1. Tell your treating provider, in writing, what is new. Where does it hurt now that didn’t hurt before? Which side? What movement triggers it? What can you no longer do that you used to do without thinking? The Hummer case turned on “left side before, right side after.” That kind of detail does not appear in a chart by accident — it appears because the patient told the provider, and the provider wrote it down.

2. Keep treating with the people who knew you before. A treater who has a longitudinal record of your body is your single most valuable witness when a pre-existing-injury defense surfaces. Hummer won because his nurse practitioner could speak credibly about what changed. A brand-new specialist you saw once cannot do that.

3. Do not panic when the IME report says the work injury “resolved.” Almost every IME report on a contested claim says some version of that. It is not the last word. It is an opinion that has to be weighed against your treater’s opinion, and the Board is allowed — and often willing — to credit your treater. The IME report is a starting position in a negotiation, not a verdict.

If a carrier in your case is running this play and your benefits have been cut off, that is exactly the moment to talk to a New York workers’ compensation attorney who has worked the other side of the table. The defense’s moves are predictable once you know what to look for. You do not have to figure this out alone.

You can read more about how I represent injured workers across Brooklyn and the rest of New York City — including the laborers, healthcare workers, MTA employees, and uniformed personnel who make up the bulk of my practice — and you can browse past issues of this newsletter at the blog index. Two weeks ago I wrote about why the May 7 Shakil decision matters for any worker stuck in the New York comp system, which pairs well with this one if you want a second helping.

If you’re a claimant attorney

A few things from Hummer worth pocketing:

The case is a clean cite for the proposition that a nurse practitioner’s longitudinal credibility can outweigh a board-certified IME orthopedist where the NP can do the work of distinguishing old-injury symptoms from new-accident symptoms by anatomic location and functional baseline.

It also reinforces the Bonitto / Brown / Dupont credibility-deference line — your job at deposition is to make the IME doctor admit, on the record, that he or she cannot say with 100% accuracy which injury is responsible. Hummer’s orthopedist gave up exactly that admission, and the Board cited it. That admission, in my experience, is available in roughly 70% of IME depositions if you set it up — most IME doctors will not perjure themselves on a certainty question they cannot honestly answer.

Finally, note the procedural posture: the carrier won at the WCLJ level. The win came on administrative review. Do not let a bad WCLJ decision on a “no further causally related disability” finding scare a client off appealing — the Board’s substantial-evidence review on conflicting medical opinions is where these cases get decided, and Hummer is the latest demonstration of that.

That’s it for this week. Hope this one is useful — if you know anyone living through a pre-existing-injury defense right now, forward it to them. That is the whole point of this thing.

See you next Thursday. (Really.)

— Levi

Frequently Asked Questions

Does a pre-existing injury disqualify me from New York workers’ compensation benefits? No. A prior injury — even to the same body part — does not disqualify you. New York workers’ compensation law allows recovery when a work accident causes a new injury or aggravates a pre-existing condition. The carrier may try to argue that your current symptoms are entirely due to the old injury, but the Workers’ Compensation Board weighs that against your treating provider’s opinion.

What is an Independent Medical Examination (IME) and why does the carrier send me to one? An IME is an examination performed by a doctor hired by the workers’ compensation insurance carrier. The carrier typically uses the IME to argue that your work injury has resolved and that you no longer need benefits. Despite the word “independent,” the IME doctor is selected and paid by the carrier.

Why did the nurse practitioner’s opinion outweigh the orthopedic surgeon’s opinion in Hummer v. Riccelli? The Workers’ Compensation Board credited the nurse practitioner because she had treated the claimant over time and could distinguish his prior left-side symptoms from the new right-side symptoms caused by the 2022 paving-machine accident. The Board has broad authority to credit the medical opinion it finds most reliable, and longitudinal treating providers often have credibility advantages over one-time IME examiners.

What should I do if my carrier cuts off my workers’ comp benefits based on an IME report? Do not assume the IME is the final word. Speak with a New York workers’ compensation attorney promptly. The Board frequently credits treating-provider opinions over IME opinions, and an experienced attorney can build the record needed to challenge an unfavorable IME on administrative review or appeal.

What is “causally-related marked partial disability” in New York workers’ comp? It is a Board finding that (a) your disability is connected to your work accident and (b) the disability is marked but partial in degree. A marked partial disability typically supports ongoing wage replacement benefits at a meaningful percentage of your average weekly wage, subject to the statutory caps.

Case Citation: Matter of Hummer v. Riccelli Enterprises, Inc., CV-25-0026 (3d Dept Feb. 11, 2026).