Knowledge

Fraud Doesn’t Pay in New York: November 2022 Update

November 18, 2022

Nathan J. Milner Damon M. Gruber Sean J. McKinley Esther F. Omoloyin

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

Key Takeaways

WCL 114-a provides the 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.
It is important to note medical benefits remain open, but should be questioned in the litigation process.
While surveillance is key, communication among all parties is crucial to obtaining a strong mandatory and discretionary finding.

As a part of our Quarterly Practice Group Update, we are pleased to produce our fifth installment highlighting examples of our continued success in the area of fraud litigation. This publication began as a one-time update; however, due to the consistent success of our dedicated attorneys we are pleased to be able to continue to relay our successes.

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.

WCB G2508681 “Social Media Shut Down”

Established claim for the right buttock, PTSD and Major Depressive Disorder.

The claimant missed three different IMEs due to fear of leaving the house, COVID, people, etc. His own tele-health medical reports repeat the same inability to leave his room. Social Media showed him flying to Florida for his birthday, celebrating the release of his new “single” in Time Square, as well as posts concerning his career as an independent filmmaker, and his time in the gym. One of these posts coincided specifically with the date of a missed IME.

The WCLJ found a full mandatory and discretionary ban due to the extent and contrast between the medical reports, indicating a homebound individual vs. the reality the claimant demonstrated in his own social media page.

WCB G2474597 “Rain on, Denial.” — Update

Established claim for the neck, right shoulder and jaw.

The claimant tried to include the low back and right knee. The severity of his symptoms kept him at 100-percent disability. The carrier obtained an IME to address expansion and obtained surveillance. The claimant denied any prior condition to his back, as well as attended the IME wearing a brace, and stated he could not do most ADLs. His doctor noted that the claimant demonstrated marked limitations in ROM.

Surveillance showed the claimant far more capable than he demonstrated to the IME, including navigating stairs, driving, and running to catch a flyaway umbrella. In addition, we received additional records that showed the claimant did have significant prior issues and treatment for his low back only a few years before this incident.

The judge found the claimant’s testimony “disingenuous, hostile and not credible,” and issued a full mandatory and discretionary ban.

A unanimous board panel increased the duration of the mandatory penalty and left the discretionary ban in place.

WCB G3021502 “Family Ties”

Established claim for a facial contusion, amended to include the back, neck, bilateral knees and right ankle.

The claimant’s treating doctor had her at 100-percent disability and additionally noted she was not working and could not work in any capacity, and reported pain in all activities of daily living.

Investigators spoke to the claimant and her daughter during a routine claims check wherein her daughter confirmed she is babysitting during this time.

The claimant was questioned at a following hearing and admitted after a few attempts to babysit for her brother’s child, eight hours per day, and, additionally, was being paid. She quit work in November 2021 when her family no longer needed help.

The law judge found no 114-a as childcare cannot be fraud. We appealed and noted the case law the judge relied upon was not similar and had to do with Reduced Earnings entitlement. The board panel rescinded all awards to date as a mandatory penalty and found the claimant’s present lack of employment unrelated to her injury.

WCB G2831541 “2^nd Time’s the Charm”

This case was established due to procedural error, wherein video contradicting the injury was not admitted to evidence, and upheld on appeal.

However, we worked with the carrier to introduce the video as evidence of 114-a. The claimant in the original trial denied prior injuries and embellished his work injury. The video showed that the claimant greatly exaggerated his mechanism of injury and the claimant showed no overt signs of disability. That, coupled with medical records, proved the claimant was in a prior MVA, with overlapping injury sites.

The law judge maintained the establishment of the case, but implemented a full mandatory and discretionary ban. The claimant has appealed, but we anticipate no modification to the finding.

WCB G2517119 “Just a little Patience”

Established claim for the left foot/ankle, neck and back from a May 2019 injury. Per the medical reports, the claimant was reliant on a cane and a back brace.

Video surveillance was filed, showing the claimant doing a lot of walking without his cane, caring for his dogs, taking care of his cars, and getting in and out of his car with no apparent difficulty. In depositions, the claimant’s treating doctor reduced his opinion from 100-percent disability to “mild to moderate.”

The claimant argued his video is not consistent with a partial disability and tried to change the narrative and preclude the video on the basis that administrative staff, which did not testify, burned the DVDs.

The law judge admitted the video, but otherwise found no violation of 114-a as there was no evidence of work of heavy physical activity. We appealed.

The board panel, thankfully, using the correct provisions of 114-a coupled with the claimant’s evasive nature during testimony, implemented the mandatory findings of 114-a, as well as a full discretionary ban.

NY WCB G2656436 “Pain in the Neck.”

Established neck and back claim from June 2020.

The claimant denied any prior related injuries, however, disclosed prior unrelated injuries. She denied prior injuries to her doctors and the IME doctors. The carrier ran an ISO showing a 2010 MVA. We requested a HIPAA and obtained over 300 pages of records, which included letters from the claimant concerning the significance of her neck injury from the MVA. Those records indicated another neck injury in the summer of 2010 during which multiple diagnostic studies were done.

During testimony, she attempted to argue the records were wrong and she had a head injury, not neck. The judge nullified all awards back to the inception of the claim.

We have appealed for a discretionary ban.

WCB G1319024 “Oh, my back. Can’t keep track.”

This is an established claim for the back from a November 2016 accident.

The claimant underwent two lumbar fusions in this file, one in March 2019 and a second one in May 2021. The record immediately prior to the second surgery indicates a subsequent MVA. We made multiple attempts to secure a HIPAA release and the claimant’s records. The claimant denied his back was involved in the accident.

The records indicated the claimant told his doctors who treated him for the MVA that prior to the November 2020 accident, his back was “doing well” and only since the accident has he experienced an onset of pain. His symptoms were listed to be 80-percent worse. He then was treated by a different doctor, requesting the second fusion surgery under his WCL claim.

The judge found a full mandatory and lifetime penalty as well as apportioned 35-percent of medical treatment as unrelated. The claimant has appealed but we do not anticipate a change in the outcome.

WCB G1748955 “Hot off the Presses”

This is a 2021 neck and back claim.

We disputed lost-time benefits as employment had been terminated for unrelated reasons between the claim onset and asserted disability period. The claimant testified at a hearing that he did not work anywhere after the accident. He testified he tried to return for a shift for the employer of record but could not, and he is looking but has not worked any place else.

Surveillance was initiated as well as a business search showing the claimant operating his own publication business, including receipt of a PPP loan. The business search, social media and video surveillance all showed the claimant physically running his own business, including driving a van with his name and logo on the vehicle and going into this business office. In addition to the business aspect, the claimant could be seen in the video moving fluidly and free from any assistive devices, contrary to his medical reports.

During his IME, he marked the box “No” when asked if he returned to work or volunteered in any capacity since the injury.

Despite being on notice for 114-a, claimant denied presently operating the business or being able to drive or even leave his property.

The law judge found 114-a, and rescinded all awards made to date in the claim. An additional discretionary penalty equal to the same value was added. We are planning an appeal for a full discretionary ban.

Yet again, these findings were made possible through coordinated efforts with our clients and with investigators and the collaborative, team-oriented attitude of our attorneys.

As we stated before, while surveillance is key, communication among all parties is crucial to obtaining a strong mandatory and discretionary finding. We would recommend to any of our clients who feel a 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 and future publications.

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