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.

• 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.

• Starting with this publication, we are including settlements whose costs have been mitigated using surveillance and other fraud-type mitigation strategies.

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 now our fourth year of this publication, which amazes me more and more every time a new publication comes together. As I always include, this publication and its content are by no means meant to portray the average claimant as someone who is gaming the system. Workers’ Compensation exists for an excellent reason: to provide coverage and assistance for those who are injured in the course of their work. As we all know too well, however, there are always those who will take advantage of a system or look to maximize their gain.

For that reason, we often recommend social media and spot checks as part of due diligence of any claim. This publication is simply the result of the hard work, and most importantly, team work to bring 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, 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, as just a few examples. Occasionally, it just speaks for itself.

WCB G3675043 “Same as the Old Boss”

This is an established claim for the head, neck, right shoulder, right wrist and right knee with dual employment being found previously.  The claimant was being paid at the 100-percent rate.  At a hearing in July 2025, the carrier raised 114-a and the claimant denied he had returned to work or had been released to do so. At the following hearing, an employer witness was produced to testify that the claimant had been working for their company on a per diem basis. Pictures of the claimant’s activities were also produced. The judge found a full mandatory and lifetime ban.

WCB G3391046 “Who Forgets an MRI… Seriously?”

Established claim from 2022 for the back. The claimant denied having a prior injury in her C3 and in her medical records, however, an ISO showed a 2015 low-back claim with seven months of treatment. When questioned at trial, she testified that she forgot and continued to assert it was not a big deal and reasonable that she didn’t remember. She conceded she failed to tell her doctor or the carrier’s IME.

The records for the prior claim were made part of the record and included diagnostic tests, physical therapy, narcotic medication and indicated lost time from work. She was even referred to a spine surgeon but never followed through.

We raised 114-a as a result of the misrepresentation and the judge found her excuses and testimony inconsistent with the record in the prior file and implemented a mandatory and lifetime ban. The Board Panel has upheld this decision.

WCB G1747488 “Gym-iny Cricket”

An established low-back claim from October 2020, later amended to include PTSD and Depression. The claimant sought to further expand the case to include post-concussion syndrome. The claimant had disclosed some exercise activity to the carrier’s IME but none to his own doctor. Per his statement to the IME, his gym visits consisted of a tread mill only. The records for the social worker indicate the claimant does not leave his house. He had a 10-lb lifting restriction.

Surveillance showed the claimant spending hours at the gym, performing intense workouts both with machines and free weights exceeding 100-lbs. The claimant is also seen visiting his vet, and washing his car, all without apparent signs of struggle.

The claimant, after viewing the video, additionally withdrew a request for a spinal cord stimulator trail, but continued to be evasive about when he started at the gym and tried to assert the activity was disclosed.

In a Reserved Decision, the judge denied expansion of the case and found both a mandatory and a permanent 114-a ban. The claimant has appealed but we do not anticipate the Board will modify the decision.

WCB G3911977 “Oh, Brother…”

Established claim for the neck, back, ribs and right shoulder. The claimant was receiving awards when surveillance was ordered and obtained, which showed him working for a landscaping company. When confronted with the video, the claimant asserted that the person working was his brother, not him.

He was ordered at the next hearing to appear in person with his attorney to address the identity issue and failed to do so. Additionally, the investigator testified that he identified the claimant by his vehicle registration and placed a confirmation phone call while the claimant was working, and the claimant is seen answering that call on the actual video.

The claimant finally admitted to returning to work but thought he gave notice to his attorney and the judge. The judge found the claimant to be not the least bit credible and implemented a lifetime 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 G4062125 “A Rolling Stone Gathers No… Credibility?”

The claimant, a dancer, had an accepted neck claim with minimal lost time. Upon returning to work, she started treating with a new doctor who alleged post-concussion syndrome and whiplash from the prior injury. She made a claim for expansion and a claim for lost time.

Our attorney performed her own internet search of the claimant and was able to locate several social media accounts which, during her claimed period of 100-percent disability she is seen frequently traveling to music festivals out of the country. In testimony she claimed that just because she can’t work doesn’t mean she has to sit at home. As there was no neck involvement in the present disability level, the judge did not find 114-a but did find no disability and denied any expansion of the claim.

G3999160 “Keep Digging that Hole”

This was a controverted claim for the right hip, face, teeth, back, right arm, right knee and right foot as a result of allegedly falling down a hole at work. A C3 was filed six weeks post-accident.   All the medical in the Board file was from a few weeks post injury and mirror the C3 concerning causation and the affected body sites. Both an orthopedic and neurological IME found causal relationship. We were, however, missing the initial urgent care reports and obtained a release for the same.

Upon receipt, the reports which were immediately after the date of accident and spanned several visits indicated only a contusion to the thigh and a fall at home. There was no mention of the claimant’s job or of the other body sites. After obtaining he additional records, the IMEs reversed their position on compensability.

We argued for a complete disallowance of the case on credibility grounds and the judge agreed completely.

WCB G2217890 “Afterthought”

This was a controverted claim for the bilateral knees brought a few months shy of a WCL 28 bar (two years). The claimant produced PFME from one medical group and denied to them and in his C3 that he had ever injured his knees before. The employer gave us his LOA application from two years prior for the same body sites, with a different doctor and medical practice, with no mention it was compensation related. We subpoenaed the records from that provider, only to find treatment, positive diagnostics, lost time and a meniscal tear leading back to 2011.

In his testimony the claimant asserted he told his employer it was work related when he applied for LOA, despite his application checking “no” in several locations. He also believed treatment meant surgery, which is why he denied a history to the Board and his second set of doctors. In deposing the second set of doctors, they confirmed they asked him multiple times of a prior history which he denied. The second doctor testified she knew about the history but only because the first doctor deposed told her after his deposition.

The claimant’s attorney argued a no harm, no foul approach that the carrier was able to properly investigate the case and since he wasn’t looking for benefits, 114-a doesn’t apply. We argued for complete disallowance on lack of credibility, and lack of clear medical. The judge found the claimant’s misrepresentation material and significant but didn’t rule on 114-a as he disallowed the case completely instead.

WCB G3828758 “Elevated Details”

This is a controverted claim for the neck, back and head allegedly sustained when an elevator the claimant was riding in dropped several floors unexpectedly, jarring her and knocking her to the ground. The case was controverted and video evidence submitted showing the elevator did in fact have a mechanical error and drop but at no point did the claimant fall over and, based on the video, does not appear to have been ‘jarred’. In addition to controverting the case, the carrier raised 114-a based on the exaggerated misrepresentation of the precipitating event.

After a full development of the record, the judge ruled that the doctors who gave causation did so based on an exaggerated version of events and disallowed the claim entirely. The claimant appealed and the Board Panel affirmed the decision.

WCB G3222683 “Just… Speechless”

Established claim. During an IME the doctor noted dried paint on the claimant’s foot.  Surveillance was obtained to show the person who attended the IME working at a construction site but was believed to be the claimant’s brother.

A further look into the past medical history shows that IMEs dating back to 2022 reported the claimant to be five-foot-six. The claimant was confirmed with the employer to be six-foot-two. A deep dive into the file showed all manner of inconsistencies with the claimant’s height and weight and it was asserted that the claimant’s brother was in fact attending medical visits and IMEs. The claimant’s version of events was that the DMV got his height and weight wrong.

The clincher was that the video proved to be claimant’s brother, which proved it was his brother that attended the IME. The judge retroactively marked all awards NCLT and implemented a lifetime ban.

SETTLEMENTS

Even with the best 114-a evidence, many times the medical aspect of the claim remains open and is a venue of exposure we urge our clients to consider. Settlement is always the preferred closure of a claim and in many instances, surveillance can help achieve a more realistic outcome based on the claimant’s actual disability level.

WCB G3558234

Established claim for laceration of the right eyebrow area, post-concussive syndrome, TBI, post-traumatic headaches, neck and thoracic spine. The claimant had been at 100-percent disability since the claim in 2023 and rejected all settlement negotiations.

Surveillance was obtained that appeared quite inconsistent with the claimant’s recorded functional status. We disclosed surveillance at a hearing and immediately received a demand for $75,000. The case ultimately was settled for $45,000 before any surveillance had to be turned over or any testimony taken.

WCB G2895241, G2761705 & G2763788

Three cases with the same claimant and employer where the claimant had denied settlement interest. During litigation on compensability of the third claim, at a time when the claimant was out on “total” disability, surveillance was obtained indicating a much higher functional capacity. We disclosed surveillance to opposing counsel and shortly thereafter settled all three claims for $20K.

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 that there is video of the incident, or lack of incident, from the employer but it is only discovered too late after the mandatory disclosure periods end. We would 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 NY and quick action and communication on behalf of the employers and carriers made the disallowances possible.

We continue to congratulate all our clients and our attorneys on their hard work and dedication and look forward to future successes and future publications.

We have also included links to our Webinar: Uses of Surveillance: From 114-a And Disallowance to Getting a More Accurate Rate. Please find our recording here and handouts here.

For more information or immediate guidance, contact:

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