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 that Goldberg Segalla was successfully 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 yet 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 G3675282 “Mis-Doc-umented”

An established claim for the left hip, but the claimant also raised the low back. The medical records clearly showed a prior low back issue, which the claimant denied. The claimant denied a low back condition with some of his treating doctors and denied a prior low back condition with the IME.

In testimony, he was asked about the documents in the file which show a chronic, pre-existing low back condition. His explanation was that his doctor had made a mistake and provided someone else’s medical records. Since the name, DOB and SSN all matched the claimants’ information, our attorney wanted a medical narrative specifically stating the mistake.

The claimant returned to his doctor seeking he “addendum,” only to have his doctor affirm it was his valid medical record the entire time, just as suspected. At the second hearing, the claimant suddenly remembered his chronic back problem and decided he had in fact told everyone, including the IME about it and they all failed to document it.

The judge found the claimant’s pattern of egregiousness sufficient to implement a mandatory and lifetime discretionary ban.

WCB G3224792 “Fraud says ‘what?’”

An asserted 2021 claim for binaural hearing loss resulting from construction installation. He testified about the cacophony of sounds on site from drills to machines. He denied any other hobbies other than gardening and specifically denied that he had not been hunting in over 20 years –  but when he did hunt, he wore ear protection. He did admit that sometimes he rides an ATV, but rarely and always uses ear protection.

It was not until he was pressed further that he admitted that he continued to both hunt and ride his ATF. When he was asked about disclosing this activity to his doctors as a hobby, he explained that hunting is a “passion,” not a “hobby.”

In medical testimony, all of his doctors testified they asked about hobbies and the claimant denied any activities that would have caused noise. They confirmed his job would have caused hearing loss but so could exposure to gunfire and had no way to verify how much loss came from his occupation vs. hunting and ATV riding. As a result, we raised 114-a.

The initial Law Judge established the case and found no violation of 114-a. The Board Panel disagreed. The Board Panel upheld the establishment of the claim, but found a full 114-a ban due to the egregious nature of lying to multiple doctors, lying while under oath and arguing that a passion is not a hobby, in addition to claiming he couldn’t have committed fraud if the doctors never specifically asked him about hunting.

WCB G3078322 “SLU-Down there, buddy”

While not technically a 114-a claim, the litigation and victory had a similar effect. This was an established claim for the right shoulder with minimal treatment and minimal lost time. The claimant appeared at his C4.3 exam and walked out with a 50% SLU determination demonstrating significant loss of range of motion. Two months later at the carrier’s IME, he demonstrated 15 degrees (out of 180) for flexion and abduction. The IME doctor refused to give an opinion due to the claimant’s exaggeration and lack of objective evidence to support any loss.

The carrier rejected the offer to compromise and litigated the matter with testimony of the treating doctor. On cross-examination, he could not explain the loss. He confirmed the MRI failed to support the permanency exam findings and prior reports did not explain the permanency exam findings.

The Law Judge found no credible evidence to support any loss of use and did not continue the case for additional opportunities, but instead marked the file as NFA.

WCB G3795200 “Rope-a-dope”

This was an asserted claim for the bilateral shoulders, knees, left hand and left elbow based on a physical altercation with a customer at the claimant’s place of work. Surveillance of the incident was filed along with defenses. The claimant had been treated extensively.

Per the claimant’s C3, she was physically attacked and struck across her body in several locations while she was unlocking a bathroom door. The video of the incident shows that an aggressive client made a demand from the claimant and spastically threw his fists around but at no time did he ever make contact or strike her and was in fact several feet away.

The video was sent to the carrier’s IME who opined the left wrist and thumb may be affected as the incident began while she was using them to unlock a door. He disagreed with the establishment of all other body sites and the need for treatment for the same.

The Law Judge agreed and disallowed all sites other than the thumb and wrist. However, based on the fact the claimant gave false information to numerous doctors, and multiple times at hearings, the judge implemented a mandatory ban under 114-a from the injury date to the decision date and a further 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 were successful in stopping the claims before they started in securing a disallowance, specifically based on false statements and credibility.

WCB G3515810 “No, your other left”

The claimant in his matter has a right knee claim with the same employer and carrier. This is uncontested. The carrier received bills for the left knee, which they denied. The medical narrative indicated the claimant asked his doctor to expand his right knee claim and the doctor declined, explaining that he has a prior underlying degenerative condition and that is likely the culprit but as nothing specific took place and it is not related to the right knee in any way, it is not a WC claim.

Two weeks after this report, the claimant filed a C3 indicating a specific incident that took place a few weeks prior, just inside the 30-day notice period. He then made an appointment with a new doctor in an entirely different practice to get prima facie evidence. Of course, the doctor provided a report based on the specific incident as described.

We were able to subpoena the original treatment facility who not only provided medical narratives, but their call history which recorded all the calls to his doctor asking him to put his left knee under his right knee claim. In the numerous calls that are logged there is no reference to an injury but several about his left knee and “getting it added.”

In the second doctor’s testimony, he informed us that he was called several months after the fact and asked to amend his report to include specific language “popping and twisting.” He did not know who called, only that he received a request.

In the written submission, the claimant explained away these inconsistencies by arguing that medical offices sometimes make mistakes, and the first doctor simply confused his left with his right.

The Law Judge found the claimant wholly uncredible and disallowed the claim in its entirety.

WCB G2216425 “Selective Amnesia”

This was a controverted claim for the right shoulder, right elbow and right hip allegedly arising from a repetitive work environment. Interestingly, the claimant filed the C3 well before he ever treated for any of these body sites.

All subsequent medical reports indicated the same work conditions of “getting in and out of his car multiple times a day and carrying a large bag 7.5 hours a day.” All the doctors, including the carrier’s IME, gave causal relationship to the described work activities.

It did not come out until the claimant’s testimony several months later that he had in fact been treated for the right shoulder well before anyone was aware. Despite no contrary medical, the judge allowed us to develop the record on that issue. We discussed the claimant had a prior OD claim for the right shoulder which resulted in a permanency rating and the claimant closed by way of a substantial settlement.

We raised several arguments, including that a claimant cannot have two ODs for the same body site, a total disallowance based on lack of credibility and a lifetime 114-a ban.

Thankfully, the Law Judge simplified the matter and disallowed ALL sites of injury due to a total lack of credibility. This rendered a decision on 114-a moot. The claimant did not appeal any aspect of the decision.

WCB G3552462 “WCL 21 – Claimant busts”

This was an asserted claim for the right foot, right ankle, right arm, back, bilateral hips and neck. The alleged claim arose from a January 2023 fall down stairs. The medical reports all initially indicated causal relationship with an inability to work, to stand, squat, bend, twist, lift, push, pull, sit, drive and sleep well.

The claim was controverted from the onset and our client was able to secure an investigator’s video of the claimant working a construction job at a different employer, complete with hard hat, multiple days in June, July, and August 2023, several months after the injury.

We also filed the claimant’s sign out sheets for the asserted day of injury, all of which specifically denied any incidents took place. The claimant’s “witnesses” sheets were also provided which showed they had no knowledge of any incidents during their shifts. Per the employer testimony, the claimant worked until March 2023 and was laid-off for lack of work.

The claimant argued under WCL 21, the carrier failed to prove the injury didn’t take place. No one was buying that.

Both the judge and the Board Panel that followed found the claimant’s lack of credibility supported by the record. The Board Panel noted the employer witnesses and timesheets were more credible than the claimant, which was further demonstrated by the fact the claimant provided false statements about his functional capacity and continued to work months after the asserted injury. The claim was completely disallowed.

WCB G3669253 “The Vacuum and the Video”

This was a controverted claim for an injury that allegedly occurred while removing a vacuum from an escalator, resulting in severe pain in the left hip. He claimed that he immediately reported the incident and was sent home early to seek medical attention. It was unwitnessed and the claimant was vague about the details.

An employer witness later testified that he learned of the incident when the claimant called off work the next day. There was no record of the alleged conversation that took place the day before. The employer testified that video evidence of the facility confirmed no incident took place. The judge continued the matter for production of the video, which showed several camera angles. In most of them, the claimant is seen working, engaging in conversation with several co-workers.

In an extremely detailed Reserved Decision, the judge summarized each phase of testimony and each of the videos provided and disallowed the case entirely. Throughout the matter, the claimant failed to explain exactly how he hurt himself, but asserted it was severe and immediate. The videos showed no event taking place, showed the claimant moved swiftly and never demonstrated any injury, discomfort or pain.

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