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


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

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

Key Takeaways

  • WCL 114-a gives 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.

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

(EDITOR’S NOTE — As part of our quarterly practice-group update, we are pleased to offer this installment highlighting our continued success in 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 relaying our successes.)

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 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 G2903553 — ‘Cane’t Hide from Us

This is an established claim for the neck, back, bilateral shoulder, left hip, right wrist, and right ankle.  The claimant was combative from the start and refused to participate the carrier’s initial IME.  At the next IME, the doctor found symptom magnification. In testimony, she asserted she has tried to walk her dog and tried to do grocery shopping, but is in extreme pain, and requires a cane and has an altered gait.

Video surveillance showed the claimant using a cane to her medical appointments and walking with a limp. After her appointments, however, she seemed able to move freely, walk, shop, drive and go about her ADLs with no overt disability. While shopping, the claimant was seen easily able to bend down and reach above her head to pull objects from the shelves.

The original ALJ found no 114-a as the claimant seemed to rely on her cart to shop. We appealed and the Board not only found 114-a, but implemented a full mandatory and discretionary ban. The Board did not give the claimant any benefit of the doubt citing to her being uncooperative at the initial IME, and a finding of symptom magnification at the second.

WCB G2970220 — A ‘Clawsome’ Outcome

An established claim for the neck, left shoulder and right elbow, expanded to include bilateral wrists.  The claimant had been listed at 100 percent disability by all doctors, hand specialists, orthopedic spine specialists, pain management and IME alike for more than a year. He frequently reported clawing, weakness, and numbness in his hands/fingers with an inability to use his hands for driving and even using of utensils.

Surveillance of the claimant showed him shopping, driving, and cleaning/riding his motorcycle, performing lawn work, and even installing and performing maintenance on a flagpole in his front yard. After providing the video to the IME, he was dropped from 100 percent to zero. Each one of the three treating doctors testified to inconsistent presentation and drastically dropped their opinions on degree of disability.

In a Bench Decision, the ALJ found a full mandatory and discretionary lifetime ban.  The claimant did not appeal.

WCB G3172978 — Selective Memory

This is an established claim for the neck, right shoulder, and right wrist. The claimant denied any prior injury to all sites, other than the wrist, on the C-3. She checked “no” on the IME questionnaire when asked about prior injuries on the first exam. On the second, she disclosed only wrist injuries. She verbally reported only wrist injuries to her treating doctor.

An ISO search showed the claimant had three prior WC injuries covering the right shoulder and neck, right shoulder and wrist and neck and back — and received permanency awards in at least two of these files and had lost time, as well.  In testimony, she confirmed she had no prior injuries and when questioned specifically about the prior claims, didn’t recall them until prompted with specific information.

The law judge found a full mandatory and discretionary ban based on the egregious nature of the multiple denials made. He additionally directed the claimant to repay prior awards to the carrier.  The matter is under appeal. We anticipate no reversal of the 114-a finding and are continuing to monitor the file for the Board’s position on the repayment order.

WCB G3330159 — ‘I’ve Got Nothing… Just… Wow’

This was an asserted claim for the low back. The claimant denied any prior low-back treatments or injuries in her C3 and in her IME questionnaire, despite making several prior low back claims with this specific employer, and a Short-Term Disability claim four months prior to the alleged work injury.

We subpoenaed all prior treatment records showing positive MRIs, EMGs, disability and years of treatment. Particularly damning was during the short-term disability period, just months before the asserted injury, the claimant was deemed totally incapable of performing ADLs based on her low-back pain. In her testimony, she did not recall these events or being pulled out of work, ever, and was very evasive.

The law judge, as requested, implemented a full mandatory and discretionary ban. To date this has not been appealed.

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 our clients and our attorneys to 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.



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