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

KEY TAKEAWAYS:

• WCL 114-a is limited to indemnity benefits by its own statutory language

• 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

• This update also includes cases Goldberg Segalla was able to have disallowed due to success in obtaining evidence on credibility early in the claims process; it is never too early to investigate red flags

As a part of our Quarterly Practice Group Update, we are pleased to produce another installment with examples of our continued success in the area of fraud litigation.

The New York State Workers’ Compensation Board has consistently broken down the severity of violations into 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 G1748716 “TikTok Tap-Out”

This was a 2021 established claim for injuries to the cervical, thoracic and lumbar spine. After litigation on degree of disability and getting a partial disability implemented, we raised attachment to the labor market. The claimant submitted voluminous job searches. A social media search came back showing that the claimant was not only seeking input from her online community as to what jobs she should claim she is applying to, but a Tik Tok page also showed the claimant’s tendency to live stream from her actual job.

Her undisclosed employment was such that a FOIA application was made. We received evidence that showed the claimant had been otherwise employed nearly the entire duration of her comp claim, and that her most recent employment was laborious in nature and resulted in a subsequent, undisclosed secondary work injury.

114-a was raised at a labor market hearing after the claimant testified she can’t find work within her restrictions. Based on the offers of proof alone, without the need for a formal trial or development of the record, her attorney conceded 114-a at the following hearing. The judge of course implemented a lifetime ban due to the severe egregiousness of the file. In addition to the cessation of indemnity benefits, we reserved the right to dispute any future medical treatment based on the new injury.

WCB G3656036 “Video Miracle Cure”

This matter relates to an established neck, lumbar spine, right elbow and left ankle claim. Based on the medical narrative of the treating doctors, the claimant had significant pain and disfunction performing daily tasks, including sleeping. He elaborated to the IME doctor that he could do minimal work around the house, but his wife had to take care of the housework and yard work. The carrier denied any payments as there had been no hearing and they received the surveillance material timely enough to reject payments.

When 114-a was raised, the claimant amazingly returned to work as a mechanic before the following hearing, but insisted he had not been working previously. A video was provided showing the claimant in what appeared to be a contractor position, going from big-box home improvement stores to other various locations with tools and equipment, using a dolly and carrying ladders. He was also seen performing activities at the garage where he claimed he just started working.

The judge found no mandatory penalty due to the lack of previous payments, but found a full future disqualification from any future payments under the discretionary penalty due to the egregiousness of the misrepresentation to the doctors as well as in the hearing.

WCB G3584412 “Self-Editing Not Okay”

This was an April 2023 claim for the left shoulder and neck. The claimant denied any prior treatment for this left shoulder. An ISO search showed a subsequent MVA from December 2023 wherein the claimant was taken by ambulance and treated for his neck, back and left shoulder. He failed to disclose this accident to anyone. Once records which showed treatment were received from the ISO, the claimant was confronted and provided the explanation that he didn’t feel the treatment overlapped. By the time the issue came up he was no longer treating his neck, which was the primary issue of the MVA. The judge found a mandatory penalty as a result.

WCB G3229543 “Validation”

This is an established claim for the back and neck from April 2022. The claimant raised the right shoulder and bilateral knees and PFME was found for the same. The claimant denied prior injuries to those sites in hearings and to the carrier’s IME doctor.

We raised 114-a and provided an ISO showing those same sites injured in a 2021 MVA. The claimant testified to minor injuries after the MVA. He was treated minimally and missed no time from work as a result. We asked specifically about the doctors and treatment he received, and he denied recalling any of them. We uploaded all the records received from the MVA, which directly disputed the claimant’s testimony.

The judge found no 114-a violation as the misrepresentation was “minor.” We appealed. The Board Panel overturned WCLJ specifically disagreeing with the finding of the MVA as “minor” and the finding that the claimant’s testimony was credible. The Board implemented a discretionary penalty of 12 months.

WCB G3720176 “Silence Can Be Golden”

This matter involved an accepted claim for the bilateral knees and exacerbation of the low back from January 2024. We came up for awards as a result of the claimant’s RFA1 seeking lost-time benefits. No prior medical records were filed until now which indicates severe restrictions. The carrier scheduled an IME which came back with limitations on standing for 30- or 40-minutes and high lifting restrictions. He could in no way return to work as a construction manager.

We disclosed surveillance and raised 114-a. At the following hearing, the claimant invoked his Fifth Amendment right not to testify and refused. The judge found that the claimant had also waived his right to engage in rebuttal testimony once the video was filed. We proceed to file the hours of surveillance material, which showed the claimant coming and going from various big-box tool and home improvement locations, purchasing hardware and materials, visiting various locations, and using the same construction equipment including tools and ladders.

The claimant actually attempted to utilize his written summations as substitution for testimony to explain away the video without subjecting himself to cross-examination.

The Law Judge correctly applied a negative inference standard and, based on the plain evidence submitted, found a discretionary penalty of a full lifetime ban.

WCB G3318864 “Refusal to Comply Not Gonna Fly”

This is an established case for the left wrist, upper back, lower back, neck and electric shock. The claimant raised consequential PTSD and stress and denied any prior treatment for psychological conditions other than marriage counseling. We raised the question of prior treatment and the claimant, despite several orders from the judge, failed to provide a HIPAA for prior treatment and providers.

However, the limited records we did have showed a history of prescription medication for psychological treatment including medication typically used for depression and anxiety. We also noted in our summation that the claimant had no disability and made no attempt to expand his case until an unrelated termination occurred.

The judge found the claimant’s lack of cooperation and the medical record sufficient to implement an 18-month period of 114-a, reduced the claimant’s disability to a mild to moderate rate, directed an overpayment to be recouped, re-directed a HIPAA and ordered proofs of work searches in 60 days.

WCB G3627735 “Too Much TV”

This matter is based on an established claim for the left hand/wrist from July 2023. At an IME in November 2024, the claimant denied returning to work in any capacity and claimed he needed help using his left hand, lifting and cleaning, and could not drive. He claimed he took a bus to the appointment.

Surveillance from earlier that same day showed the claimant in the process of packing, unpacking and moving his residence including several boxes and a very large screen TV. The carrier also received a tip that the claimant had been working and even received paystubs for work consisting of more than seven weeks of pay.

In testimony, the claimant made it worse by providing excuses that he had to move but could not bring any of his possessions as he could not lift them. He claimed his attorney knew all about his returning to work and he didn’t know why the carrier did not know. He also claimed he told the IME and his own doctors that he returned to work.

The judge, after reviewing the video and the medical record, agreed with us that the claimant’s excuses were not credible and in fact, egregious. The judge implemented a mandatory penalty during which the checks were cashed but also implemented a lifetime ban.

WCB G2800143 “Timing is Everything”

This was an accepted claim for the head, PCS, neck, back, bilateral shoulders, anxiety and depression. Heading into permanency, we raised labor market attachment. The claimant testified on June 27, 2024, that she had returned to work as a babysitter. The judge found this sufficient to satisfy attachment and continued the case for depositions of the doctors on LWEC.

During the deposition of one of her treating providers in August 2024, the provider indicated that as of her last visit in July 2024 the claimant was not working. When pressed, she testified that the claimant had returned to work briefly as a babysitter but had quit, specifically after the June 2024 hearing. When asked why the claimant quit, the provider testified that the claimant told her it had something to do with the June 2024 hearing.

At the hearing in February 2025, counsel for the claimant raised the issue of awards as the claimant was out of work. The judge recalled the claimant testifying that she had returned to work. The claimant testified she had not worked since June 21, 2024. The judge noted that was nearly a week before the claimant testified on June 24, 2024, that she had in fact been working and was working at that time. We raised 114-a.

The judge found that the claimant had falsely testified concerning her work-status, specifically in response to raising of attachment. The judge issued a mandatory penalty from June 27, 2024, going forward.

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, securing a disallowance specifically based on false statements and credibility.

WCB G3568962 “Medical Muddle”

This was a controverted claim for an occupational claim for the lumbar spine. The claimant filed two Ph16.2s one day apart with different mechanisms of injury, one OD and one accident. The medical report submitted as PFME had yet another description of the mechanism of injury. The claimant went back to the same doctor and tried to clarify, noting the date of the accident was now three months earlier than previously stated.

The carrier’s IME unfortunately gave PFME but, due to the inconsistencies, the judge allowed us to maintain controversy. In each of the depositions of the treating doctors, they initially maintained causal relationship but, upon specific cross-examination, they admitted they had no specific information concerning the claimant’s job or work history.

Employer witnesses testified the claimant had only relayed the incident when he was in danger of disciplinary action for excessive lost time and, despite multiple attempts, could not specify how the injury took place. Both witnesses testified the claimant said when reporting his case that he didn’t want to pay his medical bills.

At the end of testimony and summations, the judge found the claimant not credible due to the inconsistent medical history of what each provider knew and how the injury took place, and disallowed the claim entirely.

WCB G3450281  “Never Too Late”

This was initially an accepted claim for the back and bilateral knees from an October 2022 incident. The claimant noted on his C3 that he had never injured those body sites before and never been treated for those body sites before. The carrier voluntarily picked up payments, however there was a delay in having a first hearing to formally establish the claim and, at that time, additional information came to light concerning possible prior treatment.

It took several months and multiple orders from the judge for the claimant to produce the appropriate releases. Eventually we learned the full story. The claimant was in an MVA in March 2022 before this claim and applied for FMLA in May 2022 for the back and right knee. The medical records and the eventual disposition of the doctors revealed that the claimant failed to disclose or affirmatively denied any pre-existing injury to any of these sites and denied any prior accidents.

The Law Judge found the claimant had engaged in fraud and in addition, because the case was never formally established, disallowed the claim entirely. The Board Panel has affirmed this decision.

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 stated before, while surveillance is key, communication among all parties is crucial to obtaining a strong mandatory and discretionary findings. 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.

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 of our clients and our 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, please find our recording here.

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 group