An 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 that medical benefits remain open but should be questioned in the litigation process through the addendum cover letter or in testimony of the treating doctor. Most treatment recommendations have a subjective component which should be analyzed.

• In February 2024, we began expanding the publication to include claims that we were successfully able to have disallowed due to success in obtaining evidence on credibility early in the claim process. It is never too early to investigate red flags.

As a part of our quarterly practice group update, we are pleased to produce our latest installation with examples of our continued success in fraud litigation.

This is now our fourth year of this publication. Our attorneys are dedicated to their files and clients, and to helping provide an accurate assessment of claim costs. This publication is by no means meant to portray the average claimant as someone who is gaming the system. We do recommend social media and spot checks as part of due diligence on many of our claims. This publication is simply the result of the hard work our attorneys do, bringing to light some of the people who take advantage of the system.

As always, we remind our readers that WCL 114-a is limited to indemnity benefits, by its own statutory language:

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.

WCB  G3771041 — “Spinning a Yarn”

An established claim for the neck, low back, bilateral knees, bilateral legs and abdomen. The claimant denied, in her C3, and never mentioned to any doctor any sort of secondary employment. Her medical providers consistently kept her at 100-percent disability, specifically reporting to the carrier’s IME she has not worked since the date of loss, and she struggled to get on or off the exam table or even sit.

A social media investigation done by our attorney revealed that the claimant owns and operates an online business making customized crocheted dolls. Her posts were contemporaneous with her medical treatment and specifically referenced that she is taking orders and making all of the dolls herself, by hand.

She was specifically asked on testimony if she worked anywhere since the injury, including self-employment, which she denied. In rebuttal testimony she tried to testify that she didn’t know when asked if she returned to work that meant for herself, however, we pointed out that she was specifically asked and denied self-employment. The judge found a full mandatory and discretionary penalty.

WCB G3891252 — “Ink-credible coincidence”

Established claim for the bilateral ankles and feet. At the initial hearing in November 2024, the claimant denied returning to work in any capacity and awards were issued.

Surveillance videos obtained later showed the claimant working. In his testimony, he reluctantly conceded to occasionally working for an independent food delivery service and denied any other activity several times. The videos were then filed showing the claimant on several days across several weeks, arriving at a construction site around 8am and not leaving until the afternoon. A few days of surveillance showed the claimant specifically carrying wood, operating machinery and power tools with protective clothing and safety gear.

The claimant’s sole defense was that the person in the video who was working was not him, despite being positively identified in other parts of the video. We were able to freeze and zoom in on the video to prove specifically distinguishing features such as a unique right wrist and unique neck tattoo. The judge agreed with our decision finding a full lifetime ban. No appeal was filed by the claimant.

WCB G3844138 — “The ladder version of events”

This is an established right ring finger injury but originally raised as an injury to the left ankle, right hand, right ring finger, back and right shoulder. At a hearing in September 2024, PFME was found for the additional sites, as well as anxiety disorder.

At the following hearing, the claimant testified as well as employer witnesses. Documentary evidence included the claimant’s signed incident report and first-hand account of the incident, a photograph taken in conjunction with the incident report of only the right finger, and the claimant’s recorded statement wherein they specifically denied any other sites of injury several times. The injury occurred when the claimant’s finger was caught between two objects and had a crushing-type injury. The claimant went to three different emergency rooms on the date of the injury, all recording the same mechanism, with an injury to the right ring finger only.

Nearly a month later, the claimant began treating with a new doctor and included their neck, right shoulder, right elbow, hand, back, left foot and ankle in the new history of the event reporting that the mechanism of injury was falling off an 8-foot ladder.

When the claimant testified, the Law Judge obviously took issue with the change in the mechanism and change in stories. The claimant did not credibly explain the variation and tried to blame his employer for not listening. He had no credible answer to explain his recorded statement or signed incident report.

An employer witness was produced who worked with the claimant and testified there were no ladders being used or in the vicinity at the time of the accident. The judge agreed with the carrier on all points, not only disallowing the expansion of the additional sites but implementing a full mandatory and discretionary 114-a ban on indemnity benefits.

WCB G3950352 — “No one’s got your back, Jack”

This was an accepted left index finger claim from an asserted crush injury. The claimant raised the neck, left shoulder, left hand, left wrist, left index finger and left knee. The first two medical visits after the accident, repeated the same incident that the employer understood to have occurred, a piece of scaffolding fell onto his fingertip.

Approximately two weeks later, the mechanism changed to a large sheet of metal falling onto his head and shoulders and then landed on his knee. All these sites underwent CT scans that showed positive findings. On pages 4 and 6 of the reports, the NP noted “claimant presents status post MVA.”

In his testimony he named four witnesses but did not know the specific names of two of them.  He blames the interpretation issues at the first medical visit on one of the mysterious co-workers translating despite the hospital records indicating their own interpreters were used.

One of the named witnesses was found who testified that he did not see an accident, but it was relayed to him as the claimant cut his finger. He also testified that the other witnesses were no longer employees and were not responding to any communication attempts.

The carrier hired an investigator to find the three missing witnesses, and all were subpoenaed at their last known addresses. All three were interviewed but refused to sign their statements and all three indicated the only injury was a cut finger. There was no reference to the metal sheet or to any other injury sites. The Law Judge disallowed expansion and found that the claimant’s statements were not credible and rose to the level of complete disqualification under WCL 114-a.

WCB G2755909 — “Full of CRP-s”

This is an established claim for the left elbow, left wrist and left hand. The claimant raised consequential CRPS, and the carrier responded raising fraud.

The claimant initially treated in the file and was shortly thereafter released full duty. A few months later, he was back requesting modified duty complaining that his work responsibilities, specifically power tools cause pain in his hands. He underwent diagnostic studies that were negative.

He then began treating with different doctors, the third of which diagnosed CRPS based on the history relayed by the claimant, despite the negative bone-scan. The carrier had the claimant examined by their own doctor, who disagreed with the CRPS diagnosis. The claimant’s doctor testified that CRPS is justified given the extreme pain trigged by any sensation, even a cool breeze blowing across the claimant’s hand. He confirmed he only met the claimant twice and disregarded the negative diagnostics and lack of objective evidence.

After medical testimony, we disclosed the existence of surveillance. The claimant was very aggressive and evasive when asked to specifically testify concerning the limitations of his left hand. He did testify that he stopped working after his full duty release due to another, unrelated injury, not this one. The video evidence was filed showing the claimant driving, carrying ice and other cold products, walking his large dog and using his left hand in a normal, apparently fully functional way.

The video was sent to his doctor who modified his testimony that the activities in the video are inconstant with his presentations and inconsistent with CRPS. Based on the lack of evidence, the judge disallowed CRPS. Based on the misrepresentations in the video compared to the medical testimony, the Judge found a discretionary lifetime ban. This was appealed an upheld by the Board Panel.

WCB G3351069 — “Cupcake Culprit”

Established claim for the left ankle. The claimant was receiving a partial rate, but we were precluded from raising attachment as the claimant was technically still employed with the employer of record. She denied returning to work in any other capacity.

Social media evidence and video surveillance were submitted indicating the claimant is running a bakery. The business had its own page; the claimant posted several of her baked goods on the page. She also had a crowdfunded website that allowed her to make donations online to contribute to paying her due to her work accident.

In her testimony she claimed the crowd funded page was several years old and she made about $1300 dollars. Concerning the business, she testified it was a hobby webpage only and she never made any sales. Her friends or family would donate costs to her when she baked but that is all, she only baked three to four items.

The investigator testimony was scheduled, who purchased items from the claimant’s webpage in October 2024 and December 2024, the latter of which included alcohol sales. He also testified, authenticating video taken from his meeting with the claimant when he paid her for and received the goods.

The Law Judge found a mandatory and discretionary ban under 114-a, not only for the initial misrepresentation, but for the claimant’s false statements when confronted with the business.

DISALLOWANCES

As this publication has grown, we have started to track and include cases where we were fortunate enough to obtain evidence of false claims at the onset. Below are cases where we were successful in stopping the claims before they started in securing a disallowance, specifically based on false statements and credibility.

WCB G3558218 — “The untruth, the whole untruth and nothing but the untruth”

This is an asserted low back claim. In the C-3, the claimant asserted there were no witnesses to his injury that is alleged to have taken place while packing boxes, which took place on March 31, 2023 — a Friday. The early medical reports note the claimant denied any lifting or acute injury and no workplace injury was discussed. They do note the pain started the previous Friday. Records received from the hospital note the claimant was treated for other, more serious and acute conditions than back pain. A workplace injury was not discussed in the medical records until over a month afterwards and he was not treated regularly for the asserted condition for another six months.

The claim was timely controverted with the carrier producing two witnesses and the claimant’s schedule. In this testimony, the claimant changed his story to claim there was a witness, his supervisor, who even offered to send him home after the incident. He changed the date to Thursday March 30, 2023, and testified his injury was severe enough to require six days of hospitalization. He could not explain why the hospital records showed he was admitted for reasons other than a workplace back injury.

The employer witness testified that the claimant did not work on March 31, 2023, and had the schedule to prove it. He testified the claimant failed to show for his scheduled shifts the following week, which is the first time they were made aware of an illness/injury. The alleged witness testified as well. He confirmed the claimant did not work on March 31, 2023, and he was not aware of any incident on March 30, 2023.

The carrier asked for the case to be disallowed based on the claimant’s false statements, change in his testimony concerning the date of the injury, witnesses to the injury and testifying inconsistently with the medical record. The judge, of course, agreed and disallowed the case entirely.

WCB G3372659 — “MVA, No Way”

This was an asserted claim for the right shoulder from February 2024. In the C3, the claimant denied any prior right shoulder injuries.

The injury was reported after a meeting with HR which resulted in the claimant’s termination.  No injury was reported before or during the meeting and not until afterwards was it mentioned. The initial medical treatment on Feb. 27, 2024, specifically noted the history being attributable to a November 2023 MVA, wherein the claimant’s car actually flipped from the impact. No workplace incident, aggravation, exacerbation or reinjury was noted.

The claimant testified and repeated the denial of any prior injuries, despite the clear medical record proving the opposite. When confronted with the reports, he testified he doesn’t remember treatment but wouldn’t dispute the records. He also denied being terminated until cross-examination.

The employer witnesses testified the claimant was terminated shortly after 2 p.m. on the date of the asserted injury and at no time did he report an injury. He could not recall the exact time, only that it happened between 12-2pm. Despite the late notice, an investigation was performed, and no one was aware of any injury or could confirm any injury.

Based on the totality of the evidence, including the clear misrepresentation of an immediate prior injury, the judge disallowed the claim. This has been appealed but we do not anticipate any modification of the decision.

WCB G3550847 — “Bellyaching”

An alleged, unwitnessed claim for the head, neck, back, left shoulder, left arm, stomach, bilateral hips, left leg and left shin. The claimant asserts he fell off a scaffold 6-feet and timely gave notice via selfies from the hospital.

Medical record obtained via subpoena show the first three weeks of medical reports were complaints of abdominal discomfort and cramping after eating and showed a diagnosis of cholecystitis and gall stones. After surgery, he returned for follow up care and for the first time complaint of neck and low back pain for complaints of a slip and fall after his discharge from the hospital. No work nexus or activity was noted.

In addition to controverting the claim, 114-a was raised against the claimant. Unfortunately, the carrier’s IME gave causal relationship despite the lack of any discussion of work activity in the record for nearly two months after the first medical. On direct examination the claimant asserted he kept working after the fall, which the judge, in addition to the rest of the record, found incredible.

Based on the totality of the evidence and the medical records showing inconsistent causes, the judge disallowed the claim in full.

WCB G3836443 — “Twirly Bird”

This is an asserted claim for the right knee. Per the C3, the claimant was walking to her car after work and fell, being off-balance due to her security vest. Medical records confirmed an injury and a patellar dislocation. She claimed it was unwitnessed.

The employer was able to provide video of the asserted claim which was timely filed with defenses. In lieu of obtaining an IME or cross-examining the doctors, the video was filed and employer witnesses named for authentication purposes. The video clearly shows the claimant, for reasons unknown to anyone but her, twirling in circles as she walked to her car, which appears to have made her dizzy enough to fall.

The judge disallowed the case easily.

As always, 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.

In securing the disallowances, information and open communication is the key. The time frame for obtaining and securing defenses is limited in NY, 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 for their hard work and dedication and look forward to future successes and publications.

We have also included links to our Webinar: Uses of Surveillance: From 114-a And Disallowance to Getting a More Accurate Rate. Please find our recording here and handouts here.

For more information or immediate guidance, contact:

• Nathan J. Milner
• Or another member of our Workers’ Compensation practice group