Key Takeaways

• New York Workers’ Compensation Law 114-a provides the Workers’ Compensation Board with the authority to disqualify a claimant from receipt of lost time benefits if for the purpose of obtaining compensation pursuant to Section 15

• It also provides the Board with the authority to disqualify a claimant for the purpose of influencing any determination regarding any such payment if a claimant knowingly makes a false statement or representation as to a material fact

• Surveillance is a key to obtaining a strong mandatory and discretionary finding

New York Workers’ Compensation Law 114-a provides the Workers’ Compensation Board with the authority to disqualify a claimant from receipt of lost time benefits if for the purpose of obtaining compensation pursuant to Section 15 (i.e., lost wage replacement), or for the purpose of influencing any determination regarding any such payment (i.e., knowingly making a false statement or representation as to a material fact).

The Board has consistently broken down the severity of the violation 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.

As defense counsel, our goal is to prove to the judge that the behavior of the claimant is “egregious,” which triggers the discretionary period. There is no specific definition for egregious in the Board’s substantial history on the subject of fraud. If we are successful in proving egregiousness, the disqualification period can be extended indefinitely. Goldberg Segalla’s New York team is regularly successful in aggressively litigating 114-a and demonstrating to the judge that the claimant’s conduct was egregious.

A few of our recent representative matters include:

• In the medical narratives and his testimony, the claimant asserted very limited range of motion, painful elevation and ambulation, an inability to put on his shoes, bend, use stairs, and dependence on a cane. The video showed the claimant only used the cane to attend the IME, to obtain handicap plates from the DMV, and as an ice-scraper. He was seen performing hours of yard work and frequently used his stairs without a cane or the railing for support; playing with his granddaughter; fixing his RV; and snow blowing. The IME report indicated dependence on a cane, inability to ambulate, and poor range of motion―originally giving him 67 percent disability. After viewing the surveillance, he reported no change or inconsistencies, which forced us to argue our IME was not credible. Fortunately, both the judge and the Board used common sense, read the medical reports, listened to his testimony, and compared it to the video. The mandatory and full discretionary ban was found and upheld. The claimant is appealing further to the Full Board and Third Department, but we expect the decision to be affirmed.
• In this case, the claimant consistently denied prior injuries and denied any work capacity. Goldberg Segalla obtained records showing the claimant actually did have very recent treatment for the same established body sites, including the need of an assistive device less than four months before the injury of record. On top of that, the claimant provided his own proof of further fraud by submitting his tax records trying to claim concurrent employment to increase his own AWW. Through development of that record, we elicited proof the claimant was working for multiple ride-share companies during this periods of alleged total disability. The judge came back with lifetime ban only nine days after memos of law were filed. In this matter, the claim was established for the right knee, but the claimant was attempting to expand to include the neck, back, and left hip.
• During development of the record, surveillance was obtained showing the claimant engaged in ride-share employment, construction work, and was demonstrating far greater capabilities than indicated in the medical record. At the initial testimony, the claimant denied engaging in any work activity no less than four times. At the second hearing, he conceded he “helped a friend,” but refused to concede he was paid or that he considered it “work” and continued vague responses concerning his activities. Not only did the judge find both the mandatory and lifetime discretionary ban, but additionally found that the attempted expansion of the neck, back, and hip were disallowed. The internal instructions in the decision referred the case to the inspector general’s office for a criminal fraud investigation.
• The claimant filed a new claim with a new employer for an injury allegedly occurring at work during a time he was supposedly severely disabled and receiving benefits out of our claim. In addition to clearly working without disclosing his new job, Goldberg Segalla produced evidence the claimant provided false testimony concerning the extent of his prior injuries. The surveillance of the claimant also showed he appeared at his medical office visits relying heavily on assistive devises, which were absent during any other point in the videos. The claimant’s counsel tried to preclude our surveillance as a HIPAA violation and a violation of New York Public Health Law. The judge allowed development and summations on that point, and then summarily rejected the argument. For his efforts, he received a full 114-a lifetime ban.
• In this matter, there was already an established claim for the claimant’s back. The claimant tried to expand the case to include his right knee, denying any prior or new injuries in the process. Goldberg Segalla discovered in litigation that the claimant had a subsequent MVA, in which he injured the right knee. Despite the fact the carrier IME gave causal relationship to the right knee, we argued the treating doctors’ opinions of causal relationship, as well as the IME could not be credible due to the claimant’s attempts to misrepresent his medical history. The judge not only disallowed the right knee in our file, but found a full lifetime ban on indemnity benefits under 114-a due to the egregiousness of the claimant’s multiple attempts to bring in his knee, while hiding the true history.
• The claimant’s doctors maintained total disability, as did the carrier’s IME doctors for the duration of the claim. All reports indicated severely limited range of motion, inability to ambulate, and constant pain. Social media proof was obtained showing the claimant in go-karts and playing with his children at beach. This was paired with surveillance of the claimant limping and using his car and railings as assistive devices, barely able to walk into the IME, but cleaning out his car and shopping the rest of the day with no altered gait. The claimant’s only defense was that his military training wouldn’t allow him to show pain unless he is at a medical provider’s office. Neither the judge nor the Board found this defense credible and handed down a lifetime ban.

The findings in the cases highlighted were made possible only after weeks and months of work, coordinating with our clients and with investigators. Obtaining a 114-a finding, particularly a lifetime ban requires a team approach and Goldberg Segalla is more than happy to work with investigators, carriers, administrators, and employers to orchestrate the best outcome possible for our clients.

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.

For more information or immediate guidance, contact:

• Nathan J. Milner
• Tracey A. McLean
• Damon M. Gruber
• Sean J. McKinley
• Esther F. Omoloyin
• Or another member of our Workers’ Compensation practice