Fraud Still Doesn’t Pay in New York—February 2022 Update
Key Takeaways
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New York Workers’ Compensation Law 114-a provides the Workers’ Compensation Board with the authority to disqualify a claimant from receiving lost time benefits under certain conditions
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False statements and misrepresentation of material facts can be unearthed and overcome
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Careful research and surveillance are key to obtaining strong mandatory and discretionary findings
As a part of our quarterly practice group update, we are pleased to share additional examples of our continued success in the area of fraud litigation.
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.
The NYS Workers’ Compensation 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 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.
“Out of Work Taxi Driver” Board Panel Update WCB G2768867
The claimant was listed as 100% disabled by her own provider. The doctor specifically noted in her narratives that the claimant was unable to return to any line of gainful employment. Surveillance indicated the claimant was working during this time at a well-known ride-share service provider. We filed for 114-a and demanded the records or asked for a negative inference. She produced evidence that during the three and a half months she was “totally” disabled, she performed 479 individual rides.
Her defense was that her doctor and the carrier knew about her activities. The carrier provided an affidavit denying knowledge and in testimony, her doctor testified clearly that she had no idea. She watched the video and, in addition to confirming she never knew the claimant was driving or she would not have said 100%, she testified that the claimant getting in and out of a car and opening doors was greater than the activity level she believed her capable of in her examinations.
The judge implemented a mandatory ban. However, the Board Panel recently came back and modified the decision, implementing a full discretionary ban.
“DJ Wiggles” WCB G2614227
Established low back and right knee claim. The claimant’s C-3 denied any prior injury and established he was 100% disabled from work. In the process of determining whether the present pain issue was bilateral inguinal hernia or back related, we discovered prior low back diagnoses, medications, and treatment recommendations predating the injury of record; something the claimant tried to deny on the technicality that sciatica and low back were not the same.
In addition, a social media search showed that the claimant was posting Facebook videos of himself DJing and dancing to music as well as flying out of town, despite being in such severe pain he was unable even to sit.
The Board Panel found the claimant’s testimony so disingenuous and so lacking in credibility in explaining his activity and omitting his prior condition that a full discretionary ban was implemented.
“MVA-mnesia” WCB 00417248
Established claim for the back from 2003; no lost time claim. The claimant tried to get classified in 2021 when she was out of work. The carrier raised several defenses including her testimony on intervening or subsequent accidents or conditions arising after the injury of record. Four times she denied any subsequent accident involving her back, on the record.
We learned of multiple subsequent motor vehicle accidents, four of which were noted to have involved the low back. We raised 114-a to the extent the claimant was attempting to incorporate her subsequent back injuries into this 2003 claim for purposes of a higher PPD rate. The judge issued a full mandatory and discretionary ban. The claimant has appealed but we anticipate the decision will be upheld.
“Oh, THAT Settlement…” WCB G2473978
This is an established case for the left shoulder and lower back from April 2019. The claimant denied any prior injuries or conditions in the C-3. The claimant denied prior injuries to the IME and in testimony.
The carrier produced an ISO search showing a personal injury lawsuit for the low back, which involved a settlement. The claimant was evasive in testimony, not remembering who the lawyer was or if any treatment was rendered. The judge found the denial of a prior condition material and the claimant’s testimony evasive. A mandatory penalty was implemented and discretionary penalty was held in abeyance. The claim is presently on appeal.
“Rain on, Denial” WCBG24745974
Established claim for the neck, right shoulder and jaw. The claimant tried to include the low back and right knee. The severity of his symptoms kept him at 100% disability. The carrier obtained an IME to address expansion and obtained surveillance. The claimant denied any prior condition to his back, as well as attend the IME wearing a brace and stated he could not do most ADLs. He was noted to demonstrate marked limitations in ROM.
Surveillance showed the claimant far more capable that he demonstrated to the IME including navigating stairs, driving, and running to catch a fly-away umbrella. In addition, records were obtained demonstrating the claimant did in fact have significant prior issues and treatment for his low back only a few years before this incident.
The judge found the claimant’s testimony “disingenuous, hostile and not credible” and issued a full mandatory and discretionary ban.
Coordinating Efforts Proves Helpful
As with our previous updates, these findings were made possible through coordinated efforts with our clients and with investigators.
As we have stated previously, surveillance is a key 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 of our clients and our attorneys for their hard work and dedication, and look forward to future successes.
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