Key Takeaways

• Under certain conditions, the Workers’ Compensation Board can disqualify a claimant from receiving lost time benefits, according to New York Workers’ Compensation Law 114-a

• Claims can be overcome when false statements and misrepresentation of material facts are unearthed

• Careful research and surveillance can lead to strong mandatory and discretionary findings

As a part of our Quarterly Practice Group Update, we are pleased to produce additional examples 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.

“SELF EMPLOYED/SELF INFLICTED”  WCB  G1986629

The claimant established a claim for the head and back. While taking labor market attachment testimony, it was learned that the claimant had a real estate license but denied, under oath, any activity in the field, volunteer or otherwise, and denied having any income. A sufficient offer of proof was found for the carrier to demand tax records for 2017, 2018, 2019 and 2020, which showed a Schedule C, Profit and Loss filings, and gross receipts, and the claimant as the sole proprietor. Also received were records wherein service companies were providing human resource services, accounting services, and bookkeeping services to the claimant’s registered business for a monthly fee. In addition, we were able to produce social media overlapping the period of disability where the claimant was advertising open house events with the claimant’s own picture in the caption.

A WCLJ found no 114-a due to minimal profit, but the Board properly overturned the decision, upholding the well-established principal that profit is not needed for 114-a if the work capacity is misrepresented. The Board found more than a two-year mandatory penalty and an equivalent discretionary penalty, also creating a six-figure overpayment in the process.

“BAD CAR-MA”  WCB G2387447

The claimant established a claim for the low back and right fifth toe from June 2020. In every document in the history of the claim, the medical reports stated a prior low-back issue due to a slip and fall in 2010. The claimant failed to provide a HIPAA release when requested.

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 the 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 to no prior back claims, despite the record, testified he was hospitalized for 4 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, however admitted he lives on a farm, with horses.

The doctor who noted the work capacity was a student and barred from testifying by hospital policy, and the doctor who did testify said it was in “social history” so she could not establish the origin. The WCLJ declined to find 114-a as the work could not be substantiated.

However, the medical records 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. She imposed the mandatory penalty from the date of his testimony, but a full lifetime ban for his egregiousness. 

“I’LL TAKE ‘WHAT IS A 114-a’ FOR $10,000, ALEX”  WCB G2679638

 The claimant established a low back claim, consistently noted to be at total disability. We obtained social medica surveillance of the claimant running a catering company even as of a few days after the date of accident. In nearly 70 posts the claimant was seen promoting his business, posting menus, soliciting business, food posts, etc.

During testimony, the claimant admitted to only three months of work, denying he knew he had to disclose the activity. He claims the business failed but he kept it running as a “game” only, existing in social media where he and his children pretend to run a business. The game was to make it look as legitimate as possible, including registering his business and having friends pose as customers.

The WCLJ—clearly not buying the claimant’s excuse—found not only a full 114-a ban, but fined the claimant $10,000 payable to the State.

This is presently on appeal. We fully anticipate the 114-a finding to be upheld and are most curious whether the Board will uphold the penalty.

“WHIPLASH BACKLASH”  WCB G1759997 

The claimant established a claim for low back and consequential cervical and thoracic spine injury. In both the IME and C-3, the claimant denied prior injuries. In her testimony, the claimant conceded to an MVA but expressly denied any involvement with her neck or back, or any injuries at all.

After exhaustive efforts with her auto-insurance company, we obtained records from the MVA which, in part, showed a whiplash injury. Subpoenaed medical records showed diagnostics for the thoracic and cervical spine, as well as prescription opioid medications for the same.

The WCLJ found a mandatory ban, but declined to implement a full discretionary ban. The Board Panel disagreed, noting the repeated false assertions even under direct questioning, and implemented the full ban.

“NOT JUST SHOVELING SNOW…”  WCB G2636636 “

 This is an established claim for the left wrist and left elbow. We produced video surveillance of the claimant engaged in activities exceeding his demonstrated abilities to his doctor, including shoveling snow and lifting his children.

The claimant’s own doctor, before the surveillance was disclosed, returned him to work, in response to which he found a new doctor who agreed to keep him at 100% disability. Goldberg Segalla raised doctor shopping in addition to 114-a.

During the 114-a proceedings, the claimant admitted it was him on the video and declined to take testimony of the investigators.

The WCLJ found the claimant had violated 114-a, and rescinded benefits for a period of nearly a year, and implemented a low SLU award, creating a disability exceeds SLU scenario. The claimant appealed to the Board Panel, who affirmed and has continued to the Full Board on the issue of whether the evidence was properly admitted to the record without testimony. The Board Panel found it was waived and affirmed all findings. We anticipate no change to the outcome from the Full Board.

“HR FOR THE WIN”  WCB G26771794

The claimant established a claim for the neck and left shoulder. At a January 2022 hearing we raised labor market attachment, but the claimant denied the necessity, testifying he was still an employee of the original employer of record. The judge disallowed development on the issue of attachment as a result of the claimant’s assertions.

At a subsequent hearing in March 2022, we produced documentary support and emails from the claimant, acknowledging at the time that he had been terminated in May 2020 for cause.

We raised 114-a on the basis that the claimant falsely testified to his employment status. The WCLJ agreed not only was his testimony at the January 2022 hearing a false statement, but it was egregiousness in face of the evidence, and implemented a full mandatory and discretionary ban.

“KNEED A LITTLE HONESTY”  WCB G2827195

This was a controverted, unwitnessed claim for the right knee from May 2021 in which the claimant denied a prior injury. We produced video evidence from the work site in the defense pleading showing the claimant limping into work, before the asserted date of injury. He denied prior injuries or treatment to his right knee in testimony and to the IME doctor.

In development of the record, it was discovered that not only had the claimant undergone prior right knee surgery, but his treating provider was actively trying to schedule a total knee replacement for April 2021, just weeks before the asserted injury.

The WCLJ found a full discretionary ban due to the false testimony, but otherwise established the claim and approved the surgery. The claimant appealed the 114-a finding and we appealed the establishment of the claim, noting credibility is key in an unwitnessed claim scenario, per WCL 21. The Board Panel not only upheld the 114-a finding, but rescinded the establishment of the claim, adopting our arguments concerning credibility and an unwitnessed claim.

COORDINATION IS KEY

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 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.

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

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