Our Latest Overview of Recent Decisions and Successes in Fraud Litigation
As a part of our Quarterly Practice Group Update, we are pleased to produce our 20th installation of examples of our continued, astounding successes in the area of fraud litigation.
We are entering the fifth year of this publication. For years, the attorneys at Goldberg Segalla have worked closely with our clients to achieve fair and reasonable outcomes. At times, that requires investigating, litigating, and proving that a claimant has misrepresented their condition. Five years ago, we created this publication as a one-time summary of those successes. We then gathered additional results and published a follow-up edition – then another, and another. Its continued growth reflects the consistency of those efforts and dedication of our attorneys.
As always, we remind our readers 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.
- 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 discussed in your arguments.
- 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.
- Where we can, we also include settlements that were brought about or made possible by raising 114-a or simply by using that magic phrase, “I have video.”
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 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.
114-a (FRAUD) SUCCESSES
WCB G3306315 “Know when to Fold ‘Em” – Update
An established claim for the head, right hip, neck, right elbow, low back, and right trapezius. In this claim, the treating doctors were consistently keeping the claimant at 100% 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 cannot 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. However, we also discovered that the video sent to the doctor showed a different person performing a different job in order to persuade the doctor to note that an exacerbation had occurred and to once again assign work restrictions.
The Judge found 114-a and a lifetime ban based on the claimant’s testimony and the testimony of the doctor. The claimant appealed, and the Board panel unanimously affirmed the finding.
WCB G4084535 “Justice Delivered”
Established claim for a right-hand burn, PCS, neck, back, and right shoulder. While the claimant was out on total disability cashing his compensation checks, we obtained surveillance that he was working as a gig delivery driver. We disclosed surveillance, and the claimant still denied working, testifying he was helping his son-in-law only. The video surveillance showed the claimant himself making over 80 deliveries in a single day.
Not only did the surveillance show the claimant was in fact engaged in activity that strongly indicated he was working on his own, but his physical activity in the video was also well above and beyond his supposed physical limitations. A factor the judge relied on heavily in the surveillance video was that the claimant was seen driving himself to his IME, despite denying the ability to do so.
The judge issued a reserved decision finding a mandatory penalty from the first date of the video and found that the claimant’s misrepresentations to be “sufficiently flagrant, egregious, and persuasive” enough for a full lifetime ban.
WCB G3511893 “Not So Good Will”
This is an established left-hand injury from 2023. The claimant was out of work, and the carrier was issuing ordered, partial benefits. The claimant disclosed working as a volunteer at his local fire department. He disclosed administrative duties only but denied being able to make runs or actively participate.
An online search into the fire department’s own social media shows he was the top responder for all of 2025, making over 149 runs and was top ten for January 2026. As our surveillance was social media, the exact material was not disclosed until after the claimant testified. He testified he made no runs and only attended monthly administrative meetings. He confirmed that the volunteers who do the emergency runs are trained to administer CPR, and an AED, and often are deployed with more than 30 pounds of equipment.
After his testimony, the full social media search was filed, which contradicted the claimant’s testimony. The law judge found his misrepresentation to his doctors and under oath to be sufficient for the mandatory penalty and egregious enough for a lifetime ban. The only noted defense was that volunteer firefighters should be exempt from fraud trials.
DISALLOWANCES
Below are cases in which we successfully secured disallowances before claims were initiated, based specifically on false statements and credibility issues. This type of success, to stop a claim before it gets started, is only successful with early, active investigation and communication.
WCB G4100417 “Rollercoaster Ride”
This was an asserted claim for the low back, which started out as an accident claim. Inconsistencies in the story, not only the how, but the when, were questioned so the claim was controverted from the beginning. As we reviewed the medical records, the story did not become clearer, with different doctors providing different time frames, but none identifying a mechanism. When the lead practitioner was deposed, she herself admitted she was very uncertain of when the actual incident took place. She acknowledged that the claimant had a congenital condition but denied any prior treatment symptoms. It was then changed to an occupational disease claim that must have taken place over time.
At some point – no one knows when, as it was undated – the claimant wrote a detailed letter explaining his position and how the injury came to be. Again, no indication of history. We continued to press and obtained the supposed “original” treatment record, which revealed the source of the symptoms to be completely unknown to the claimant. This led us to another treatment provider who, through subpoena, we obtained records going back over a decade, well before his employment began with our client. The record demonstrated chronic, consistent low back pain.
When the claimant finally testified, he could not provide any clarity to the “what” or “when” or even support his own written statement and rescinded his statement. When confronted with his medical history, he claimed the treatment was for something else, but for insurance purposes was coded as “the back.”
The judge was difficult to read throughout the process but ultimately disallowed the entire claim in a reserved decision, finding the claimant not credible in both his history and his alleged mechanism of injury. She also found the medical providers’ opinions of causal relationship not to be credible as they clearly had insufficient information, regardless of their assertions.
WCB G4205937 “Dance the Night Away”
This was an accepted but never formally established claim for the right knee. The claimant was a dancer in a well-known musical production who was out due to total disability. During that time, red flags arose, and an online investigation took place showing the claimant traveling out of the country, actively participating in social media and unveiling an appearance as a special guest in a different musical production in a different state – as a dancer.
We recommended that our client cease benefits immediately and request an affidavit on his work status, which the claimant provided. During the hearing that arose from unilateral suspension, we raised the social media information, but the claimant denied working. He claimed he was hired and that the advertisements took place prior to his injury. He also testified that he never performed and was never even in the building but that the venue opted to keep his name listed to draw interest. The judge believed him and found no fraud. We did not.
We returned to the venue’s website and found that photographs of the event had been posted, which included evidence of the claimant in costume and on stage. We secured an affidavit from the photographer affirming the creation date, time and place of the original source photos, and even secured his 1099 from the venue.
We appealed the original decision and filed for a hearing with the new evidence. There was no way for the claimant to talk himself out of this as we had proof he lied to the judge at the first hearing. The judge implemented 114-a and then realizing the case has yet to formally be established, opted to take the matter one step further, disallowing the entire claim on credibility grounds. No appeal was taken.
WCB G3375712 “…Got Greedy”
This was a controverted claim for the right knee, which took place weeks before the scheduled furlough season, but mysteriously was not reported or became symptomatic until the day the work furlough began. The mechanism of injury varied from tripping while carrying insulation to working on a roof to falling off a roof. The injury was surprisingly unwitnessed by a crew of eight people.
Despite the controversy, we had negotiated a nominal settlement to dispose of the case without further litigation. The claimant, however, had second thoughts, firing his first attorney and continued to pursue the claim. The new counsel categorized the changes in story, time, and setting as purely “semantics.”
The judge disagreed. In a bench decision, the law judge disallowed the claim, finding the claimant to be utterly not credible. An appeal has been filed, but we do not expect any change.
SETTLEMENTS
As discussed above, under a strict interpretation of 114-a, medical remains open. Success is never guaranteed, even after litigation and potential appeals, and the associated costs must be considered. The only way to close a case permanently is through settlement, but that does not mean surveillance cannot still be a useful tool.
WCB G3920471 “Three Magic Words”
This was an established case for the low back from January 2025. The claimant continued to be maintained at a 50% disability rating despite minimal objective findings, limited treatment, and significant subjective pain complaints. In late 2025, the carrier obtained an IME opining 25% disability. His own medical narratives maintain 50% or more and note he is not happy with the IME opinion. We anticipated litigation on degree of disability and obtained surveillance of the claimant performing what appeared to be normal ADLs, in our opinion, not in line with this doctor’s narratives. In lieu of raising 114-a, we disclosed that “we have video” at the eventual hearing. We declined to compromise on the rate and noted our intention to send it to the treating doctors for development of the record on degree of disability. The judge agreed it was our right to do so and granted the request.
Approximately 10 minutes after the hearing, before the surveillance was filed with the board, we received a settlement demand. We negotiated that down and settled the claim outright. The final settlement value was more than $100,000 less than the ATF deposit potential.
WCB G3925539 “Food Truck Fiasco”
This was an established claim for the right ankle. The claimant was paid total disability benefits by the carrier when they obtained surveillance. The surveillance was successful, albeit limited, showing the claimant leaving his IME and heading for a food truck. Initially, he sat in the customer area, but it did not take long before he was shown in the truck, cooking, cleaning, and cashing out customers. We raised 114-a, and he testified he was only visiting a friend. The video was sent to the claimant’s counsel, and a nominal settlement was discussed. The claimant refused and terminated his relationship with counsel, retaining a new one who initially refused to settle.
After they received the video, however, they also agreed to a nominal settlement, closing the case without any further litigation.
WCB G4009790 “Stand and Deliver”
Established claim for the upper back area, lower back area, right shoulder, right knee, right hip, and left ankle from April 2025. The claimant was out of work receiving ongoing indemnity payments, but surveillance was obtained showing her making deliveries for a local dispensary. She denied any work at all to the carrier’s IME.
We raised fraud, disclosed surveillance, and set the matter down for 114-a litigation. Before any additional hearings took place, we received a demand for $50,000. We were able to negotiate settlement for $20,000, approximately one-fourth of the anticipated value of the claim before surveillance was disclosed.
WCB G3975885 “Too Hot to Handle”
This case is established for the left hand/left thumb burn. The claimant attempted to expand the claim to include the low back, neck, and left shoulder. The added sites were based on the claimant’s assertion that, in addition to the burn, he sustained a fall. The case was originally accepted because the employer conceded the burn took place, but denied the claimant fell.
However, video of the incident showed no fall took place. The video was submitted to the file, and an IME was obtained with the video that clearly showed no fall. After the IME report was filed, the medical narratives changed to the claimant alleging a completely different mechanism of injury.
We raised 114-a, and the testimony of the claimant did not match the video. The law judge watched the video prior to the hearing and called the claimant out on where in the video the injury took place. Opposing counsel tried every tactic to discredit our position, but the judge interrupted and educated them on the potential outcome. Counsel made a demand for $30,000 and then lowered it to $7,500.
REDUCED SCHEDULE LOSS OF USE VALUES
WCB G3158925 “Half-Off”
This was an established OD claim for the bilateral shoulders and bilateral knees with no lost time. Both sides produced permanency reports with total exposure over $500,000 based on the cumulative schedule values. The medical reports varied between the IME and treating doctor but were still significantly high. When the PD was issued ordering depositions, we obtained surveillance that showed the claimant fluidly using his arms, demonstrating much more range of motion than recorded by either doctor.
We raised 114-a and disclosed surveillance as well as the claimant’s schedule, showing full duty with overtime and their job description.
In lieu of ongoing litigation, based on the produced evidence, we were successful in stipulation to schedule loss of use values of less than one-half of values indicated for the upper arms by the IME doctor pre-surveillance.
Surveillance, whether it be social media or investigator video is of course essential in these successes. More essential, however, is frequent, open, and active communication among all parties. Often, we learn too late there is video of the incident or lack of incident from the employer only discovered after the mandatory disclosure periods end. We recommend 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 New York, and quick action and communication on behalf of the employers and carriers make disallowances possible.
We continue to congratulate all of our clients and our attorneys on 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, the information is included below.
We have also included links to our Webinar: Uses of Surveillance: From 114-a And Disallowance to Getting a More Accurate Rate