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

Key Takeaways

• Goldberg Segalla continues to demonstrate a record of success in the area of fraud litigation

• The cases below not only show that success, but also demonstrate the state Workers’ Compensation Board’s ongoing approach in 114-a matters

• We recommend any of our clients who feel a claim is not progressing, or have any indication of suspicious activity, to coordinate with our team

As part of our Quarterly Practice Group Update, we are pleased to provide our latest installation with examples of Goldberg Segalla’s continued success in the area of fraud litigation.

This publication is by no means meant to portray the average workers’ compensation claimant as dishonest. Workers’ compensation exists for an excellent reason: to provide coverage and assistance for those who are injured in the course of their work.

A small percentage of workers look to play the system and maximize their benefits or stack the deck in their favor with the judges and their own doctors. For that reason, we typically recommend social media and spot checks as part of due diligence of any claim.

The successes we share in this publication continue to be the result of the hard work and – most importantly – teamwork it takes to uncover some of the people who do take advantage of the system.

The Impact of 114-a

The reality is when we raise 114-a we are immediately put on the defensive. That phrase generates complexities in litigation unlike any other aspect of Worker’s Compensation. No one wants to hear it, least of all the judge. Everything we do and every move we make will be scrutinized to preclude our evidence or to find an explanation around what we argue are material misrepresentations.

For anyone considering raising 114-a, we suggest you work closely with counsel and investigators to anticipate defenses and build the best case you can, in good faith. Overly aggressive tactics or poorly developed fact patterns water down the extensive 114-a case law and are often remembered the next time a carrier, employee or attorney raises fraud in front of that particular judge.

Remember that 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.

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 discussed in your arguments.

Mandatory and Discretionary Findings

The 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 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.

The Role of Surveillance

Surveillance – whether social media or investigator video – is essential in these successes. More essential, however, is frequent, open and active communication among all parties to avoid missed deadlines. Too often we learn that there is video of the incident – or lack of an incident – from the employer after the mandatory disclosure periods have ended.

SUCCESS IN ESTABLISHING 114-a (FRAUD)

WCB G3656036  “Video Miracle Cure” Update

This was 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 can do minimal work around the house, but his wife has 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 hearing which followed, but was insistent 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, equipment, using a dolly and carrying ladders. He was also seen performing activities at the garage where he claims he only 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.

The claimant appealed. However, the recent Board Panel affirmed all findings.

WCB G3749201  “If at First You Don’t Succeed …“

This was an accepted case for the back and right elbow. The claimant also raised the neck, bilateral shoulders, bilateral knees, and the left elbow. On the C3, he disclosed prior shoulder issues. When the shoulders were raised, the judge raised the question of priors and the claimant claimed he had prior PT only and portrayed the prior issues as minor.

By obtaining all of his records and OC110a, we were able to uncover not only prior PT for the shoulders, but treatment spanning back five years including MRIs, injections, surgery and a time-barred attempt to establish another WC claim against his prior employer that was disallowed only one month prior to the new accident.

The obvious misrepresentation and credibility issues lead the judge to not only disallow ALL additional claimed sites but implement a lifetime discretionary ban under 114-a. The claimant has appealed that decision.

WCB G3584412  “Self-Editing, Not Ok”  Update

A claim for the left shoulder and neck from April 2023. The claimant denied any prior treatment for his 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. After records from the ISO were received, the claimant was confronted. His reason for not disclosing the information was that he didn’t feel the treatment overlapped as the MVA was predominantly an injury to his neck and by the time the issue came up he was no longer treating his neck, which was the primary issue of the MVA. We maintained the record does not support that statement and his reasoning was not credible.

The judge found a mandatory penalty of a few months only and we appealed. The Board Panel came back and modified the judge’s decision implementing a permanent future bar on awards as well.

WCB G3050189 & G3631206  “Double Dipping”

In this matter the claimant had an original claim from 2021 for the head, exacerbation of post-traumatic headaches, and cervical spine. He had never returned to work. Degree of disability was litigated successfully in our favor in 2023, which the claimant appealed, advocating for a higher rate.

A medical narrative was filed during the pendency of the appeal indicating a date of loss only a few months prior. This lead our attorney and carrier to investigate, whereupon we learned the claimant not only had been working for a new employer but had filed a July 2023 date of accident claim with the NY Board. The judge obviously found a mandatory and lifetime bar. We argued the claimants’ appeal to increase his award period, arguing a higher disability while actively working, was egregious. The judge agreed.

WCB G3720176  “Silence Can Be Golden”  Update

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. The current record indicates severe restrictions. The carrier scheduled an IME, which came back with limitations on standing to 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 hearing which followed, the claimant invoked his Fifth Amendment right not to testify. 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 show the claimant coming and going from various big-box tool and home improvement locations purchasing hardware and materials, visiting various locations and using 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.

The claimant appealed the decision. However, the Board Panel affirmed the finding.

WCB G2468411  “Smile for the Camera”

Established claim for the neck, right shoulder and depressive disorder from 2019. The claimant received benefits and had been disabled since the date of loss. A demand for settlement was received based on an expected high loss of wage-earning capacity. Surveillance was completed proactively in light of the settlement demand.

Remote surveillance showed the claimant highly active around his home, with frequent bending, lifting and carrying his children, as well as walking and caring for a large dog.

We were simultaneously litigating permanency with treating physicians’ opinion of near total loss and a 2 lb. lifting capacity as well as future surgery due to severe limitations in functional capacity. The claimant specifically testified that his wife had to do all of the housework and he could not lift more than a single newspaper.

When the video was produced, the claimant’s counsel argued it wasn’t the claimant in the video. The judge ordered the claimant to turn on the video, but the claimant said he couldn’t figure out how. The case was continued for investigator testimony and for the claimant’s video. Of course, when the claimant presented video the judge rightly determined that it was in fact him in the first video.

Based on the video and the claimant’s misrepresentation as to identity, a lifetime ban was found.

SECURING DISALLOWANCES

In securing the disallowances, information and open communication are 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 make the disallowances possible.

Following is a case where we were successful in obtaining evidence of false claims at the outset, thereby stopping the claim before it started and securing a disallowance specifically based on false statements and credibility.

WCB G4126902  “Direction Change”

Controverted claim for the right foot. The FROI was filed 2 business days after the incident report was signed, and the incident report was sent to counsel and submitted with initial defensive filings. Also submitted was video from the facility showing the claimant emerging from behind a blocked view. He then walked an approximately 100-foot-long corridor to the main office. Admittedly, the video was a bit choppy, but it showed no disturbance to his gait. The moment the claimant opened the office door, he effectuated an extremely obvious limp.

In his C3, he denied prior treatment. His PFME narrative, however, noted recent prior treatment with a different doctor. It took three hearings to obtain as he provided a release but not the name of the treating doctor. We pressed the issue, and the judge finally ordered the specific document filed. Eventually he produced the document, which noted not only a different date of onset – one week prior to the asserted injury – but also noted an injury at home that aggravated a congenital condition. There was no indication of a workplace injury in the narrative.

In testimony, the claimant asserted that when he advised his supervisor of an injury his job was threatened, which is why he told the first doctor a different version of events. We had that same supervisor present to testify to authenticate the video submission. We argued the claimant’s excuse is incredulous to the point of fraud. We noted the timely filed FROI and the filed incident report, both of which were entirely inconsistent with the assertion the employer was trying to bury a claim.

The judge put little stock in the video due to the quality, but came down hard on the claimant for his credibility and willingness to lie about his employer. The claim was disallowed entirely for lack of credibility. No appeal was taken.

Our Thanks and Congratulations

Finally, we want to continue to express our gratitude as well as congratulations to our colleagues, clients and vendors who were engaged in these cases on their hard work and dedication. We look forward to future successes and publications.

For More Information

If you missed our Webinar Series on 114-a, feel free to use the links below to view the following recordings:

• 114-a Litigation Strategies: How to Prepare for the Best Possible Outcome
• Uses of Surveillance: Social Media and Investigator Video

For more information or immediate guidance, contact:

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