Our Latest Overview of Recent Decisions and Successes in Fraud Litigation
As part of our Quarterly Practice Group Update, we are pleased to produce our latest installation of examples of our continued, astounding successes in the area of fraud litigation.
Fraud litigation rarely follows a specific formula. There are myriad rules on video submission, including when it can be used, and when it must be used. How should it be used? Is it better to file the video now and obtain an IME addendum or wait for claimant’s testimony?
In addition, there are different rules to follow when using social media or claimant-generated content and records vs. investigator obtained video surveillance. A strategy to maximize the efficacy of the evidence is strongly encouraged to be agreed upon by the carrier and their counsel.
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 can 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 greater the period and scope of the evidence, the greater 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. Occasionally, it just speaks for itself.
It is due to the lack of a specific definition of ‘egregiousness’ that the strategy is essential. We often let clients know that we cannot anticipate whether a judge will implement a partial or lifetime ban until the claimant testifies or the doctor is deposed. More often than not, those two events really convince the judge one way or the other when it was just a good day, or an attempt to game the system.
114-a (FRAUD) SUCCESSES
WCB G3777291 “Selective Memory – Part … I Seriously Lost Count”
An established claim for the neck and left shoulder. The claimant indicated on her C3 form and to multiple treating and IME doctors that she had never had treatment or issues prior to the established 2024 claim. The carrier completed an ISO and subpoenaed medical records that showed not only was the claimant involved in a motor-vehicle accident one year prior, but also that significant treatment and diagnostic studies explained her present subjective symptoms.
Further development of the record included a deposition of the claimant’s chiropractor, who confirmed she had been treating the claimant for cervical pain for years – a total of 34 separate occasions – even prior to the motor-vehicle accident.
When confronted with the medical record during her own testimony, the claimant finally conceded the accident took place but failed to recall any specific treatment or symptoms that resulted from the accident.
Based on the plain record and the claimant’s evasiveness, the judge implemented a full mandatory and discretionary ban. This was appealed and upheld by the Board Panel.
WCB G3933477 “Tik Toking 9 to 5”
This is an established claim from 2024 for the right wrist and neck with a consequential psychological component. The claimant was disabled per the medical narratives and unable to work in any capacity.
A routine social media sweep was conducted which revealed the claimant was very active as an influencer with hundreds of thousands of followers. Her social media activity included not only frequent postings, but travel to expos and businesses in line with her social media theme.
Prior to raising 114-a, the claimant could not work, lift, climb or drive and had difficulty using her hand. Once 114-a was raised, the claimant miraculously recalled her social media work and disclosed it at her very next doctor’s appointment.
When confronted, the claimant was evasive and the judge found her incredible. So much so that both a mandatory and discretionary lifetime ban was implemented.
WCB G3320498 “Doppelganger”
This was a complicated, contested case from mid-2022. There were multiple issues including proper employer and proper coverage requiring several hearings. The proper employer was not established until mid-2023 and, ultimately, the claim itself in mid-2024.
The claim was eventually established for the low back, neck, bilateral shoulders, bilateral knees and bilateral ankles. Per his C3, his testimony and the entirety of the medical record, the claimant denied ever having returned to work – anywhere – since the date of loss. As the claim had been delayed on procedural grounds, awards were not addressed until 2025 when the claimant sought lost time benefits back to the date of the accident. At that time, we provided the on-site medic as a witness, who confirmed the claimant returned to work a few days after the incident claiming to have only needed the weekend to recuperate. The claimant’s schedule, ID and on-site check-ins were provided when he contested this fact in testimony.
The claimant went further in his defense to allege that his keycard must have been stolen. Both the judge and the Board Panel found the claimant’s testimony patently incredible and implemented and then affirmed a full lifetime ban.
WCB G3735383 “Party Preppin’”
Established claim for the left shoulder, back, bilateral shoulders, left elbow, left knee, concussion and cephalgia from 2025.
The claimant’s medical narratives indicated severe pain and 100-percent disability, and most activities of daily living aggravated his condition. It was noted that the claimant had difficulty getting on and off the exam table and going from sitting to standing. He demonstrated a severe gait and complained to the IME that his life consists of lying around and going to treatments.
Six dates of surveillance were obtained, coinciding with the dates of these medical narratives. The claimant is seen moving fluidly while performing yard work and home maintenance, with no altered gait visible – even when the claimant ascends and descends steps. The claimant moved fluidly and interchangeably from a sitting, standing, squatting and even lying down position. On one day in particular, the claimant appears to be shopping for and setting up for a party at his residence – including carrying cases of alcohol.
We raised 114-a and took the claimant’s testimony. He confirmed that the activity and physical limitations noted in the medical record were accurate and denied any functional capacity.
After reviewing the record, the claimant’s testimony and the surveillance, the judge implemented a lifetime ban on awards.
DISALLOWANCES
Below are cases where we were successful in stopping the claims before they started by securing a disallowance, specifically based on false statements and credibility. This type of success, to stop a claim before it gets started, is only possible with early, active investigation and communication.
WCB G2217890 “Afterthought” – UPDATE
This was a controverted claim for the bilateral knees brought a few months shy of a WCL 28 bar (two years). The claimant produced PFME from one medical group and denied to them and in his C3 that he had ever injured his knees before. The employer gave us his LOA application from two years prior for the same body sites, with a different doctor and medical practice, with no mention it was compensation related. We subpoenaed the records from that provider, only to find treatment, positive diagnostics, lost time and a meniscal tear leading back to 2011.
In his testimony, the claimant asserted he told his employer it was work related when he applied for LOA, despite the fact that he had checked “no” on his application in several locations. He also believed treatment meant surgery, which is why he denied a history to the Board and his second set of doctors. When deposed, the second set of doctors confirmed they asked him multiple times about a prior history, which he denied. The second doctor testified she knew about the history but only because the first doctor deposed told her after his deposition.
The claimant’s attorney argued a no-harm, no-foul approach, saying that the carrier was able to properly investigate the case, and because the claimant wasn’t looking for benefits, 114-a did not apply. We argued for complete disallowance on lack of credibility, and lack of clear medical. The judge found the claimant’s misrepresentation material and significant but didn’t rule on 114-a as he disallowed the case completely instead.
The claimant appealed and the Board Panel unanimously affirmed the decision.
WCB G4008229 “When I said ‘No’ I meant ‘Yes’”
The claimant filed a C-3 for injuries to the right knee and right hip. On her C-3, she reported giving notice to a supervisor in September 2024. The first hearing was in July 2025. The Law Judge noted the claimant had a large gap between her injury and the first medical treatment. The claimant claimed to have more contemporaneous medical and the Law Judge declined to find PFME until she produced it. We sought HIPAAs for a prior motor-vehicle accident which claimant’s counsel had disclosed. Claimant’s counsel confirmed on the record that she did disclose the accident and she had no issue with a directive for HIPAAs. The claimant then insisted that she was not involved in a motor vehicle accident in 2022.
After several attempts, we obtained the records which showed frequent treatment for the right knee including records that noted very high pain levels. The claimant’s attorney decided to have the claimant sign an affidavit that stated that she had no prior overlapping injuries (despite the records already in the Board file at this time). When questioned on the discrepancy over the prior accident, she testified the medical narratives were wrong and her affidavit was right.
In addition to the questionable medical history, we coordinated with the employer witness provided by the employer. The witness not only did not know the claimant and had no knowledge of an accident on the claimed day of accident but was not working on the date notice was meant to have been given.
The Law Judge disallowed the claim entirely on credibility grounds.
WCB G4108909 “Now for a little Show and Tell”
This is an asserted claim for the low back, neck and bilateral shoulders. The claimant reported being ‘ejected’ 10 feet through the air from a drivable pallet jack after colliding with another jack in the warehouse. He alleged head trauma and loss of consciousness in addition to the PFME sites.
Our client acknowledged that something had happened, but disputed the claimant’s version of events and denied any injury took place. Video from the facility shows an apparently minor collision did take place, but the claimant stepped off the jack in a perfectly controlled manner. There was no ejection, no fall, no loss of consciousness. We controverted the claim and additionally raised WCL 114-a.
After viewing the video and comparing it to the medical record, the judge disallowed the case, finding 114-a moot as a result. The claimant switched counsel and appealed on the basis that the medical should be considered, not the video.
Surveillance – whether social media or investigator video – is, of course, essential in these successes. More essential, however, is frequent, open and active communication among all parties. We sometimes learn the employer has video of the incident (or lack of incident) too late, after the mandatory disclosure periods have ended. We suggest that any of our clients who feel a claim is not progressing, or there is indication of suspicious activity, should coordinate with our team.
In securing the disallowances, information and open communication is the key. The time frame for obtaining and securing defenses is limited in New York and quick action and communication on behalf of the employers and carriers made the disallowances possible.
We continue to congratulate all our clients and attorneys on their hard work and dedication and look forward to future successes and future publications.
If you missed our Webinar Series on 114-a and how to maximize your claims, the information is included below.
We have also included a link to our Webinar: Uses of Surveillance: From 114-a And Disallowance to Getting a More Accurate Rate