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.

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

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 our fourth year of this publication, and in February 2024, we expanded the quarterly update to include claims which we were successfully able to have disallowed due to obtaining evidence on credibility early in the claim process. It is never too early to investigate red flags. Our attorneys are dedicated to their files and clients and to providing 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 bringing to light some of the people who do 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, 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 G3306315 “Know When to Fold ‘Em”

An established claim for the head, right hip, neck, right elbow, low back, and right trapezius. In this claim, the treating doctors consistently kept the claimant at 100 percent with failed results from injections despite limited relevant diagnostic findings. Our IMEs continued to give low disability, but in litigation, the ratings were kept high. We obtained surveillance showing the claimant attending an IME, after which the doctor noted that the claimant could not even sit down due to discomfort. What surveillance showed was the claimant leaving the IME and heading to a casino for several hours playing cards and using video poker. A few days later, he rebuilt his lawnmower and cleared his back yard of debris.

After his doctor testified that the video “shocked and disappointed him,” the claimant amazingly went back to work within a week. Shortly afterwards, however, his doctor pulled him out again due to an exacerbation. We learned in a second round of testimony that the claimant sent the doctor a video of his own claiming he could not do his new job. We learned the doctor was sent a video of a different person doing a different job in order to get an exacerbation and taken back out of work.

The judge found 114-a and a lifetime ban based on the claimant’s testimony and the testimony of the doctor.

WCB G3523253 “It Wasn’t Me (again…)”

Established claim for the upper back, neck, and right shoulder. The injury itself was not controverted, but at the onset, the carrier raised the possibility of 114-a due to a denial of prior injuries in the record as compared to the ISO.

The claimant initially denied and then admitted to the accidents when seeing the ISO but downplayed the actual treatment and results. The judge gave the carrier leave to gather the records to build their 114-a claim. In testimony, the claimant was aggressive, something noted by the judge in the final decision.

Initially, the claimant denied any prior accident took place. He then conceded they happened and simply denied the extent of prior treatment. When faced with the treatment records, the claimant reverted to his original position: he had never had a prior accident or MVA. The list of accidents that are listed under his SSD and name and address on the ISO were, according to him, his brother, who had stolen his identity and apparently happened to be accident prone. The claimant produced no shred of proof, police report, communication with his insurance companies that he was not the subject of these, some rather serious, accidents.

The claimant’s evasiveness, aggressiveness, and continued attempts to manipulate the facts led the judge to a full lifetime discretionary ban.

WCB G3557860 “Busted by the Judge”

This was a controverted claim for the low back. The case raised several red flags on inception, such as the claimant calling out of work for personal reasons and performance-related reviews and suspension at work. It was not until after those issues that a work-claim was filed.

We protectively denied the case for these reasons. The claimant failed to attend multiple IMEs.  The claimant denied any prior injury to his back initially, but when pressed, admitted to an MVA just one year prior. During the testimony, the judge himself, in reviewing the Board system, found a 2020 claim disallowed for a low back occupational disease. The claimant then changed his story, admitting to filing the claim but still denied treatment. The judge informed us there was over a year’s worth of treatment records in that file alone.

At the conclusion of testimony, the judge found 114-a for a mandatory and lifetime discretionary penalty. The claimant appealed, and the Board Panel affirmed all findings.

WCB G3670720 “Im-paws-sible to Forget”

Established low back claim from August 2023. The claimant sought to expand the case to include the thoracic back, head, and neck, and in doing so, significant variations began to appear in the claimant’s version of events, including the extent of prior treatment.

As the development of the record unfolded, the variations in the claimant’s story caused questions pertaining to his credibility, including whether he fell forwards, backwards, tripped over a dog, a denial that any dog was present, and how many stairs he fell down. The carrier also discovered, in investigating the new cites added, a significant treatment history for those cites which the claimant previously denied. The records, once finally received, showed nearly a year of treatment pre-dating the injury of record, including PT, diagnostics, and work restrictions.

We argued, and the law judge agreed that the numerous variations in the claimant’s version of events, coupled with the denial of his relevant pre-existing conditions and treatment, warranted a full lifetime discretionary ban.

WCB G3452462 “ISO the Truth” – Update

This is an established occupational disease claim for the back, where per the C-3 and discussion with the treating doctor, the claimant denied any prior back treatment or injuries.  The carrier obtained an ISO report, which showed several motor vehicle accidents. After obtaining over 400 pages of records that detailed treatment, we raised 114-a.

The treating doctor testified that, at the onset of treatment, they specifically asked her if she had a history of motor vehicle accidents, which she denied, saying her back had been “perfect.”

When confronted with the evidence, the claimant testified and admitted to the accidents, which resulted in legal action, lost time, and monetary benefits. The judge implemented a mandatory and discretionary penalty exceeding three years of benefits.

The Board Panel affirmed the fraud findings.

WCB G3550678 “Hard Luck, Hard Hat”

Established claim for the chest, neck, back, bilateral shoulders, right ankle, and post-traumatic headaches. The C3 stated that a board fell on the claimant’s head, breaking his hard hat and knocking him unconscious. This was repeated to subsequent doctors and the carrier’s IME. At permanency, the orthopedic IME came back saying not at MMI, but that subjective complaints do not match the accepted mechanism of injury and noted significant symptom magnification.

After the case was established, we received the video of the incident. The claimant was struck by a falling board and therefore had a valid claim. The board, however, struck him indirectly and only glanced off his head/shoulders. He walked away and never lost consciousness. He showed no overt signs of injury for several minutes after the fall.

114-a was raised at the subsequent hearing, and the claimant testified he could not remember the specifics of the accident as someone called an ambulance for him.

We produced an employer witness to authenticate the video and argued 114-a based on the misrepresentation of the extent of the initial accident. The judge, after hearing testimony and viewing the video, agreed. He rescinded all awards made to date, implementing the mandatory penalty and issued a discretionary penalty of all future awards.

WCB G3632569 “Time Warp”

This is an established case for the left great toe, left foot, left shoulder, left hip, and left knee from an August 2023 accident.

The claimant, while raising many of the sites listed above as expansion sites, was, per her doctors, totally disabled.

The carrier produced not only social media videos that the claimant posted of herself on Tik Tok, but also their own surveillance reports. The social media posts, taken shortly after the inception of the claim, while she was totally disabled, showed the claimant dancing in her apartment.

The claimant tried to argue that the videos were made prior to the accident, but when faced with the contradiction that she had only begun renting that apartment after the injury, she claimed she made the video of herself dancing in the apartment during a walk-through while trying to decide if she would rent it, but she only posted it after the accident. She explained the furniture was the same as subsequent videos she made because the prior tenant let her have their furniture.

In another video, she testified again that she made the video before the accident but only posted the video after the accident. Unfortunately for her, she chose to dance to a well-known recent song with a well-publicized release date and was proven to not have been released until after the accident, rendering her explanation impossible.

At a later hearing, the claimant testified regarding video surveillance, which showed the claimant engaged in business activities with her mother.

We argued, and the judge agreed that the claimant clearly violated 114-a and her testimony was not credible concerning the dates of the videos and her return to work. He implemented a mandatory and lifetime discretionary ban.

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 successfully secured a disallowance, stopping the claims before they started, specifically based on false statements and credibility.

WCB G3774197 “Right Place, Wrong Time”

This is an asserted construction claim for the head, back, neck, right shoulder, right knee, and right foot as result of an accident installing sheetrock. As proof of his employment, the claimant filed five paystubs with the subcontractor’s logo. None of the paystubs matched the date of the accident. Our client was brought in as a general contractor with potential liability. During the development of the record, all the doctors (including the IMEs) confirmed with causal relationship, however, oddly, all had different explanations given to them as to how the accident took place.

The record was developed on whether our client was the appropriate general contractor or even involved in the case at all. During that development, it came out that the claimant did not work for the subcontractor entity on the day of the alleged accident, and in fact, the project he specifically asserted was the cause of his accident was completed a significant amount of time prior to the alleged date.

We raised 114-a and disallowance of the claim based on the false statements on causation, the false statements on work activity, and the false statements of timing. The judge found 114-a to be not ripe based on the fact he disallowed the entire claim on credibility grounds.

WCB G36767074 “Team Effort”

This was an asserted claim for the right shoulder, neck, and right knee. The claimant denied any prior treatment. The claimant asserted that he was passing wood to carpenters on the top deck, and the construction material fell on this shoulder. The incident was witnessed by a foreman who testified the material fell but never came into contact with the claimant. The claimant began working for this employer on 09/25/2023, and within two weeks, had been written up for job performance and asserted numerous accidents with no proof.

At the trial, one of the claimant’s ‘witnesses’ testified he did not see anything, and the other, while the claimant testified he had no contact, testified his witness would not be free from his prior engagement for another 40 minutes. The claimant testified that he was not aware the second witness had seen the accident several months afterwards, as he was nearly 8 to 12 feet away. The witness, however, later testified that they spoke about it that day and frequently, as he was only three feet away when it happened.

The carrier’s witnesses, including the foreman, testified at a later hearing. The foreman testified that the claimant and his witness were hired together but did not work together on the day in question and were not even on the same crew. He also testified that the witness stopped working on the same day as the claimant’s injury and hasn’t returned. He testified that, had the incident occurred the way the claimant described, his injuries would have been significant.

Medical records showed the claimant treated his back and neck immediately prior to this alleged injury date. The doctors also testified that the version of events on the C3 and that the claimant testified to was not the version of events explained to them. They testified there was no indication of any acute findings despite treating the claimant only days after the alleged injury.

Based on the staggering inconsistencies and false statements, we argued this was a staged issue with the claimant’s witness/friend, and the judge agreed. The judge disallowed the case based on the claimant’s complete lack of credibility.

WCB G3897110 “Liar on the Ladder”

Another apparently staged accident – the claimant alleged an injury occurred to his right knee and back, stemming from jamming his knee on the scaffold. He claimed it happened right before lunch, but he was able to work the rest of his shift for several hours before needing to go to the hospital.

The claimant’s time sheets did not show that he signed out due to an accident, which was required.

The medical record showed the claimant was treated after initially complaining of pain due to falling off of a ladder from a height of four feet. He had a follow up visit with a different office two days later and alleged he was climbing a ladder when the ladder fell backwards onto him, injuring his back, head, right shoulder, and right knee.

While testifying, he claimed that he was ascending an A-frame ladder which was just leaning against the wall; the ladder opened, and he grabbed the wall for support. He lost his grip and dropped down onto his knee and injured his back.

We were able to secure the testimony of a former employee, who testified all the workers were aware that just a few days later, the construction company was ceasing operations. He himself had been laid off three days after the alleged incident. He testified that the claimant was nowhere near the location he asserted the accident occurred.

A second employer-witness testified, one of whom the claimant named. He testified he had no knowledge of the fall or the time period that the claimant asserted, saying the timing does not correlate to the claimant’s location when he alleged the injury took place.

WCB G2113037 “The Hose Knows” — Update

This is an asserted claim for the right shoulder and right elbow resulting from the pressure created when disconnecting a hydraulic hose from a skid loader. The medical record was sparse and inconsistent due to an unrelated incarceration before the pre-hearing conference.

The claim was controverted, as the employer witness informed the carrier the injury could not have happened the way it was described. The claimant described applying significant pressure to a five-inch hydraulic hose to disengage an extension on a skid loader. The assertion was, after great effort, when the hose disengaged, the force shot the hose into the claimant’s upper arm, causing a jolt.

The employer-witness testified, but more importantly, we were able to secure video of the employer/owner demonstrating attaching and disengaging the ¾ inch hose from the skid loader with ease, showing not only a total lack of pressure, but minimal effort in order to accomplish the goal. The video demonstrated both the skid loader running and while shut off.

Based on the video demonstration and complete lack of consistency with the claimant’s version of events, the claim was denied.

The claimant appealed, and the Board unanimously upheld the denial.

WCB G3559640 “Time and Place Matter” — Update

This is an asserted occupational disease claim for the hands, wrists, and elbows, allegedly raised from the claimant’s light duty position. The case was denied, as the employer reviewed the C3 and realized the claimant’s job description was not accurate. The case was controverted, and through that process, his doctor testified that he understood the claimant’s job duty was much more heavy in nature, which it was…several years prior with a different employer.

We argued the treating doctor was operating off an insufficient understanding of the claimant’s job duties, and the judge agreed, disallowing the case entirely.

The claimant appealed. However, the Board Panel affirmed the disallowance.

As always, these findings were made possible through coordinated efforts with our clients and 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 recommend to any 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 are key. The time frame or obtaining and securing defenses is limited in New York, 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 we look forward to future successes and 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