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Fraud Doesn’t Pay in New York – August 2023 Update


Fraud Doesn’t Pay in New York – August 2023 Update

An Overview of Recent Decisions Demonstrating the Board’s Attitude Toward 114-a

(Editor’s Note – As a part of our Quarterly Practice Group Update, we are pleased to produce our next installment showing 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 very pleased to be able to continue to relay our successes.)

Key Takeaways:

  • WCL 114-a provides the Board 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 that medical benefits remain open but should be questioned in the litigation process.

  • If you feel a claim is not progressing, or have any indication of suspicious activity, we encourage you to consult with our team.

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.

WCB G3077642 “No Laughing Matter”

This is an established claim for the right ankle. The claimant works as a greeter and was working without reduced earnings. He was suddenly increased to 100 percent, and soon after his attorney began sending demanding letters due to his dire financial situation. The carrier received a tip that he was self-employed in the entertainment industry.

Video surveillance and social media showed the claimant touring multiple states as a comedian.  Surveillance investigators were able to record his set in more than one state. We believe he caught on as he disclosed the activity to an IME doctor but his own had no idea and testified as such. The Law Judge found a 41-week ban, which would negate most of the anticipated SLU, but we are appealing for a greater discretionary period.

WCB 50610468 “Confession” – Update BOARD AFFIRMED

This is an established 2006 (pre-capped) claim for the left shoulder and neck. The claimant, on his own at a hearing on 12/8/2021 testified that he has been working for at least a few months and failed to disclose to the carrier as he didn’t consider his compensation checks to be based on his inability to work, rather a percentage of his disability. He confirmed his earnings were in excess of his 2006 AWW but appeared to feel it was appropriate to keep cashing them as his workers’ compensation checks were too small to live on.

He was also looking for work specifically due to an unrelated incarceration that required him to work as part of his parole release.

We argued and the judge agreed that the December 2021 disclosure does not negate that awards were placed on the record at hearings earlier in 2021. The claimant unsuccessfully appealed the discretionary penalty provision.

WCB G3107909 “Fare is Fare”

This is an established claim for neck, back, right shoulder, right hip, bilateral knees and left ankle.  During litigation on degree of disability and labor market attachment, the carrier disclosed the existence of surveillance. The claimant testified, specifically denying any, and all, work activity, even denying the specific activity indicated on the video.

Surveillance was provided which showed the claimant working as a taxicab driver as well as evidence that the claimant changed his license type to class “E” which indicates they are a driver-for-hire many months prior.

In light of the evidence provided, as well as the claimant’s continued false statements under oath, the law judge found both a mandatory and lifetime discretionary ban.

WCB G3325073 “Rope –a–Dope

This was as controverted claim for the neck and right shoulder. Per the C-3, the claimant fell asleep on the job, was punched repeatedly in the arms, and neck by his supervisor to wake him up. The claimant went so far as to file a police report against his supervisor. The claimant asserted multiple sites of injury, including psychological injuries.

As part of the defense, we filed video taken from the facility that shows that the claimant’s supervisor tapped his other shoulder to wake him and the claimant became verbally aggressive, but at no time did any physical altercation take place. The video was filed as well as the police report, which indicated there was insufficient evidence of an assault. We raised all defenses, including 114-a.

After an extensive trial, the judge disallowed the claim based on the footage and the testimony and concluded the claimant filed the claim in relation.

While not strictly a 114-a claim, this file highlights the same process can be used and, if used early enough in a file, can lead to fantastic results.

WCB G0188298 “Hell hath no fury…”

Established claim for the neck, back, abrasion to the knees, right leg, left hand, consequential ED, consequential adjustment disorder, bladder dysfunction, anorexia and itching of the head.  Claimant was found to be a permanent, total disability.

The file was referred to the carrier by the Inspector General’s office due to alleged sales of his prescription pain medication sold on the street.

The claimant’s former girlfriend testified to his extensive physical capabilities, as well as video of the claimant selling his medication, paid for by the compensation carrier. Through many rounds of litigation, the WCLJ not only found a permanent, lifetime ban, but placed an overpayment on the record for the carrier to attempt to recoup in civil court. It was also found that based on the evidence, the carrier is no longer responsible for payment of medications or medical treatment in connection with this claim.

The Board upheld the lifetime ban but the claimant did not appeal the suspension of medical treatment, which was made at a later hearing.

The Board has been known to rule on medical treatment on a case-by-case basis, based very specifically on the evidence. We feel confident that the Board would have upheld this ruling, based on the fact the claimant was allegedly selling his medication — a very strong indication it was not needed.

WCB  G2988661 “Pain in the neck”

An asserted claim for the neck, back, left shoulder and arm. The claimant failed to file a C-3, but asserted to the IME doctor that he had no prior neck condition, both verbally and in the pre-exam questionnaire. The IME found causally related neck issues and 100 percent disability.

An ISO report was filed showing numerous prior injuries with overlapping body sites. Subpoenaed medical records and prior claims showed prior claims and treatment, including a 2014 MVA and neck injury. An addendum was obtained in which the IME doctor stated the claimant failed to provide an accurate history and modified his opinion to 80-percent pre-existing and 20-percent causal relationship for the neck.

Depositions were conducted and every treating doctor testified they were unaware of any prior treatment or conditions. During testimony, even after disclosure, the claimant testified to no prior neck condition.

The law judge found the claimant’s testimony incredible and he misrepresented not only the extent of his prior treatment, but its existence entirely. The judge implemented a mandatory and fully lifetime discretionary ban.  The claim was established as an exacerbation only.

The claimant has appealed, but we anticipate no alteration to the ruling.

WCB G2869454 “We’ll Do This Without You Then”

This is an established right elbow, right hand, right thumb, right distal biceps, right DeQuervain’s, right epicondylitis, right shoulder and neck claim.

An ISO report was obtained which showed in addition to a 2012 claim wherein the claimant was awarded a 15-percent SLU of the right arm, the claimant had a 2014 MVA. She disclosed the prior comp claim, but not the MVA. Medical records were obtained which included treatment and diagnostics related to the 2014 claim. The claimant also raised the neck, which overlapped with the 2014 MVA also, which the claimant denied.

At a hearing on 12/3/2022 the matter was continued for the testimony of one final doctor and the claimant’s testimony was requested on the issues of 114-a.  The claimant testified on 2/1/2023, but at that point, we still did not have the full MVA records. She testified to no prior neck involvement in that injury. The judge declined to find 114-a, unless the records come back and contradict the claimant’s testimony.  The records showed extensive neck treatment.

At a hearing on 6/15/2023, the judge continued the case for the claimant’s testimony and ordered the minutes of the February hearing transcribed. We again raised 114-a. At the adjournment date on 7/17/2023, the claimant failed to appear. At the 8/25/2023 hearing, the claimant again failed to appear.

Counsel for the claimant asked for a finding of NFA. We pushed the issue that the testimony has already been taken and the new testimony was essentially rebuttal testimony. We pursued a 114-a finding. The judge agreed with us, noting for the record the claimant has had two opportunities to testify and address the carrier’s assertions and has declined to do so. The judge found a mandatory and full discretionary ban.

Yet again, these findings were made possible through coordinated efforts with our clients and with investigators and the collaborative, team-oriented approach 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 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 and future publications.

If you missed our Webinar Series on 114-a and how to maximize your claims, please find handouts here and our recording here.

For more information or immediate guidance, contact: