Another Overview of Recent Decisions, Demonstrating the Board’s Continuing Attitude Toward 114-a.

Key Takeaways

• The Workers’ Compensation Board can disqualify a claimant from receiving lost-time benefits under certain circumstances.

• Claimants could be disqualified for receipt of benefits upon discovery that they knowingly made false statements or misrepresented facts.

• Research, communication, and surveillance are important keys to obtaining strong mandatory and discretionary findings.

As a part of our Quarterly Practice Group Update, we are pleased to produce additional examples of our continued success in the area of fraud litigation.

WCL 114-a provides the NYS Workers’ Compensation Board with the authority to disqualify a claimant from receipt of lost time benefits, “[i]f for the purpose of obtaining compensation pursuant to section fifteen of this chapter, or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact.”  Section 15 is specific to lost wage replacement.

The board has consistently broken down the severity of the violation into essentially two categories: mandatory and discretionary. The mandatory penalty correlates to the number of weeks, equivalent to what we are able to definitively prove. This typically runs from the first date of surveillance, or the first date we can prove an inconsistent statement, through to the date of the judge’s decision. The longer the period and scope of the evidence, the longer the mandatory period.

The discretionary period is based on a standard of “egregiousness.” While there is no specific formula, this can be proven by contrasting the degree to which the claimant either misrepresented their condition, the absence of mitigating factors in the claimant’s favor, or the extent they have gone to perpetuate the misrepresentation, as just a few examples.

“Bad Car-Ma” (Update – Board Upheld Full Lifetime Ban)  WCB G2387447

The claimant established a claim for the low back and right, fifth toe from June 2020.

In July 2021, a medical report was filed indicating the claimant had a recent MVA, but he denied any involvement with his low back.

In October 2021, a medical report was filed that stated the claimant was out on disability from a 2010 incident, this claim, and an MVA, but was paying his rent by working with horses as a farmhand. The carrier raised 114-a as a result.

The claimant testified he was hospitalized for four days for his leg only as a result of the July 2021 MVA, and downplayed it as a pulled thigh muscle. He also testified his doctor made a mistake, but admitted he lives on a farm, with horses.

The medical records, however, received after the claimant testified from the MVA extensively discussed excruciating pain in his back, and his doctor testified to the same, as a direct result of the MVA.

The WCLJ found the claimant’s testimony inconsistent with the MVA records, evasive and noted his delay in providing a HIPAA. The judge imposed the mandatory penalty from the date of his testimony, but a full lifetime ban for his egregiousness.

The claimant appealed, but the board upheld.

“HIPAA delay doesn’t get away”  WCB G2823998   

This was a controverted claim for the low back. In the C3 and the IME, the claimant denied any prior low-back issues and any prior MVAs, specifically. In testimony, he conceded a prior low-back claim from 2017, but testified he was fine and had recovered before this incident. The claimant did not comply immediately with the request for a HIPAA, and the case was established.

After finally obtaining the prior records, an IME addendum was obtained modifying causal relationship to an exacerbation with a low apportionment opinion only. The WCLJ found the claimant misrepresented in testimony, but only partially, and implemented a mandatory penalty of 14.2 weeks only.

We appealed and the board agreed, modifying the ban to a full discretionary ban due to the claimant’s false testimony, and modified the establishment to an exacerbation of a prior condition only.

“Health-e dose of reality”   WCB G2356893 

The claimant established a back and right-hip claim from October 2018. After a two-year gap in treatment, and awards when the claimant moved out of state, he filed an RFA to get money moving again with an opinion of 100-percent disability.

We asked for his testimony based on social media and business records. The claimant denied doing any work since 2019. We took his testimony on his LLC filing for food service, his certifications and advertisements as a personal trainer and nutritional advisor, online training services, and, specifically, a posted advertisement for sessions the following day (after the hearing). He also applied for a business loan.

Despite these proofs, the WCLJ found there was no proof of earnings; so, no 114-a.

The board overturned, implementing a mandatory penalty of more than two years.

“Return of the MRI”    WCB G2987112 

This is an established lumbar spine claim from October 2021. Per the C-3, the claimant denied prior issues with his back. A C-4AUTH was filed requesting surgery based on an MRI from November 2021, discussing a comparison to a March 2021 MRI. This raised a red flag and we subpoenaed records as a result.

Records received from three different providers showed extensive treatment and imaging studies in 2017, 2020 and the first half of 2021 — all for the low back.

When confronted, the claimant was not forthcoming in testimony and failed to recall specifics of his prior treatment. In depositions, the treating confirmed that the MRI findings from before this incident, which were the basis of the C-4AUTH request for surgery, were nearly identical to the November 2021 MRI.

Not only did the WCLJ deny the surgery, the judge implemented a mandatory penalty for the history of the claim, plus a full discretionary bar.

“Flipping houses, Flipping claims”   WCB G2782253

The claimant has two cases: left knee and abdomen.  In the left-knee claim, the claimant denied any work to his doctors, and was noted to have a 100-percent disability.

The claimant testified on March 16, 2021 and in May 2021 that he had not worked since October 2020, emphatically calling the assertion “ridiculous” that his little chores for his aunt could be considered work.

Surveillance material was disclosed showing the claimant has a contracting company and was working. The claimant, upon being confronted, admitted some work capacity as a contractor for his house-flipping company, but expressly denied doing work himself, testifying that he contracted the work out to other vendors.

He then brought the hernia case on calendar, separately, raising total disability in this claim back to July 2021.  The cases thereafter traveled together.

Surveillance material admitted into the record showed the claimant himself working at two different locations in May 2021 — one of which was the day after he testified that it was “ridiculous” that he could work in any capacity.

The law judge easily found both the mandatory and full discretionary bans applicable to both files.  The claimant has appealed but we do not anticipate a change in the result.

WCB G3171521 “Can’t Keep the Story Straight”

A claim was established for the low back, but raised neck, both knees, both ankles, both hips and right shoulder issues. The claimant admitted to some prior conditions in the C-3, but failed to provide any additional information concerning treatment. At the IME, she conceded to a prior 2006 back injury only. When asked if it was due to a claim or accident, she said “no,” and claimed minimal treatment.

At a subsequent IME, she filled out a new questionnaire stating she had a prior right shoulder injury only in 2011, but again denied it being a claim or recent treatment. An ISO search yielded three prior comp claims for the neck, back and right shoulder. After demanding a HIPAA and OC110a, we received over 300 pages from prior providers detailing extensive underlying conditions, including prior diagnostics, pain management and radiculopathy, going back for years leading right up to the this claim.

The judge found a full lifetime ban and disallowed all the additional sites.

As always, these findings were made possible through coordinated efforts with our clients and with investigators.

As we stated before, surveillance, and in many instances, communication among all parties is key to obtaining a strong mandatory and discretionary finding. We would recommend to any of our clients who feel the claim is not progressing, or have any indication of suspicious activity, to coordinate with our team.  We continue to congratulate all of our clients and our attorneys for their hard work and dedication, and look forward to future successes.

For more information or immediate guidance, contact:

• Nathan J. Milner
• Damon M. Gruber
• Sean J. McKinley
• Esther F. Omoloyin
• Or another member of our Workers’ Compensation practice

If you missed our Webinar Series on 114-a and how to maximize your claims, the information is included below.

Handouts:

https://goldbergsegalla.sharefile.com/d-s5ecf2858058a46148ab56cb3a0da1a5e

Recording:

https://attendee.gotowebinar.com/recording/2984624734106541315