An Overview of Recent Decisions Demonstrating the Board’s Continuing Attitude Toward 114-a

KEY TAKEAWAYS:

• WCL 114-a provides the Board 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

• In February, we expanded this publication to include claims we succeeded in having disallowed due to obtaining evidence on credibility early in the claim process. It is never too early to investigate red flags

As a part of our Quarterly Practice Group Update, we are pleased to produce our latest installment of our continued success in fraud litigation. This report was originally conceptualized nearly three years ago as a one-time publication in May 2021, however due to the consistent success of our dedicated attorneys we are very pleased to be able to continue to relay our accomplishments.

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 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 G2755909 “CRPS-BS”

An established claim for the left elbow, left wrist and left hand resulting from a crush injury.  He received six months of temporary total benefits from March to September 2020. He eventually returned to work full-time until being laid off.  The claimant would later raise CRPS and claim total disability. He testified in a manner later characterized by the judge as “evasive at best, with demeanor bordering on hostile” under oath that he could not use his left hand to perform any work or lift any more than a “can of soda.”

Surveillance of the claimant shows him driving, lifting several bags of ice, walking a full-grown large dog and performing normal activities with his left hand. The surveillance was shown to his primary doctor before testimony, and he confirmed it was inconsistent and demonstrated someone with no limitations.

The judge disallowed the expansion of the claim to include CRPS and found a mandatory and lifetime 114-a forfeiture.

WCB G3387535 “Caught by Cliché”

This is an established claim for the right shoulder, neck, back, both shoulders, both wrists, both knees, both hips, both ankles, left foot and left great toe. The claimant appeared for IMEs with a cane, knee brace and lumbar support brace moving quite cautiously with an altered gait.

We obtained surveillance video of the claimant showing him move about freely, even quickly, with no devices whatsoever and frequently carrying items and with no altered gait. The video is of the same day as the IME. After testimony, where the claimant continued to be evasive, the judge gave leave to all parties to supply the video to the respective doctors and obtain addendums. The two IMEs dropped from a moderate rate and marked rate to no disability. The claimant’s doctors, who had been listing 100-percent disability did not supply an addendum.

The judge upheld a denial of treatment, found a mandatory penalty of the misrepresentation period and additionally found a permanent disqualification based on the severity of the misrepresentation.

WCB G3061509 “Hipaa strikes again…again.”

Established 2021 claim for the left shoulder and left knee with right knee, right shoulder and back raised. The claimant failed to disclose any prior injuries in his PH16, C3, medical narratives, IMEs, Board and carrier. We were able to secure a Hipaa release and obtain hundreds of pages of prior records which demonstrated prior injuries in 2012 to the left knee and back, 2009 back, 2019 back left knee and left shoulder.

After development of the record, we demonstrated the claimant failed to disclose these records to numerous treating providers, and five different IME examinations during the lifetime of his claim.

In an excellent Reserved Decision, the Law Judge, citing to our memorandum of law, lists the numerous opportunities the claimant had to relay is prior condition and even expressly denied any prior issues. She went on to list the extent of treatment to each site in the historical records.

Not only was a mandatory 114-a violation found, but a permanent ban on any lost time benefits of future SLU benefits due to egregiousness of the violation.

WCB G2445364 “If the designer Shoe fits…”

This is an established claim for the back and right knee. At the initial hearing, the claimant testified he has not worked anywhere since the day of injury, including volunteer work and was awarded the total benefit rate, consistent with the medical record. He testified in the same capacity at subsequent hearings and received awards at the total disability rate. The medical notes the claimant had difficulty ambulating and negotiating stairs resulting in the high disability rating.

We obtained surveillance showing that the claimant had several social media accounts and was advertising a shoe and jewelry design company and was listed as CEO of several other companies. The claimant wrote several articles about his industry and was paid for those articles and even runs a volunteer organization that hosts events and participates in speaking engagements, as recently as the weekend before the hearing. Some were virtual, some required inter-state travel. The search revealed the claimant had significant media engagements to speak about fashion including a local fashion week, news interviews, YouTube channels and radio talk-shows.

The claimant’s defense was everything was volunteer, and that the material showed the date the content was posted, not the date it was created. The judge allowed the claimant the opportunity to submit evidence showing the creation date of the content as opposed to the posting date and the claimant failed to produce a single piece of rebuttal evidence.

We additionally secured records of an undisclosed 2010 MVA which resulted in injury to and treatment for the back that was not only undisclosed, but expressly denied.

The judge in her Reserved Decision noted the claimant’s failure to follow up on the opportunity to submit rebuttal evidence, the fact the claimant affirmatively denied owning a business or volunteering. It was also noted that the claimant denied prior injuries which was clearly false. A mandatory and lifetime ban were implemented.

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 G3415699 “The untruth, the whole untruth and nothing but the untruth”

This is an asserted low back claim for a claimant who alleges he was an employee of our client’s insured. He certified in his C3, in his testimony, to his doctor and to the IME doctor that he was injured when he was moving a propane tank that was frozen to the ground. He named several direct witnesses.

The case was initially controverted as the claimant was not and never was an employee of the insured but instead was hired by the owner of the employer for work at their private residence and in no way related to their business. The owners maintained he never complained of an injury until they received notice of the claim.

In obtaining records from early treatment, the records from three separate providers indicated that the claimant did not relay at all that he was injured at work, but rather he was injured playing with his daughter at the playground the weekend after the asserted injury. The direct witnesses named by the claimant never appeared to testify.

In a Bench Decision, the judge found the claimant not credible in any of his testimony. We also raised 114-a, which the judge declined to address in light of the total disallowance.

WCB G3674293 “Think Before You Hit Send”

This is a controverted claim for the low back. In his C-3 the claimant asserted the injury occurred by sitting in an “awkward and compromising angle.” He denied any claims for the low back in the C3 and testified to the same.

During the course of scheduling depositions, the doctor, apparently by accident, sent us not only the claimant’s detailed history of prior back problems, but also advice on what he should say and not say in his testimony to get the claim established and hide aspects of his history. This was, of course, filed with the Board and included in our summations. 114-a was also raised but was found moot by the Law Judge as the claim was disallowed entirely.

WCB G3157269 “Sunday Fun-Day”

A controverted claim that arose allegedly while unpacking windows and falling while at a construction site. The claimant certified and testified that the injury took place on 12/11/2023.  Not only did payroll records how the claimant did not work on this date, but it was a Sunday, and no one worked that day. He additionally testified the employer knew of the accident and paid him for a few additional days. Timecards personally signed by the claimant shows he continued to work his regular hours after the asserted claim.

We raised disallowance on credibility grounds but also raised 114-a protectively in the event the judge established the claim. The judge again here found 114-a moot and disallowed the claim entirely.

G3550847 “ER Omission”

Asserted claim for the head, neck, back, left shoulder, left arm, stomach, hips, left leg, and left shin for an asserted, unwitnessed fall from scaffolding. The employer denied any knowledge of any accident taking place and controverted the claim. Early records show the claimant treated for possible liver and gallbladder issues and even had a cholecystectomy.

It was not until his surgical follow-up visit nearly a month later was there any reference to a fall. The IME even conceded the fall could have resulted in the injuries asserted if the fall were legitimate. We maintained the controversy and on direct examination the IME noted it was highly unusual for the ER records to fail to record an asserted fall or orthopedic injury.

The claimant testified as well as two employer witnesses and after the development of the record, the judge did not believe the claimant fell at work and disallowed the entire claim. We raised 114-a, which was found moot due to the disallowance.

WCB G3625729 “Arguing with Yourself”

This was a controverted claim for the bilateral knees asserting she stood up at work and fell to both knees. The medical report indicates the claimant was walking on a concrete floor at the time of fall despite any evidence of an acute injury in the diagnostic examinations. She was diagnosed with a contusion and cleared for full duty return to work. The claimant sought a different doctor who noted the mechanism of injury was a fall on a wet surface and listed her at 100-percent disability.

The carrier obtained an IME who noted full duty capabilities and symptom magnification.

The carrier obtained a recorded statement from the claimant where she asserted she just fell for no reason and believed she may have fallen and had knee pain as a result of a recent Covid-19 diagnosis. The claimant’s counsel objected to production of the audio but the examiner testified to authenticate the recording.

After hearing the audio recording and reviewing the multiple versions of the mechanism of injury, the judge found the carrier overcame their burden and disallowed the claim entirely.

WCB G3606334 “Dr. Feel-Bad”

Initially accepted claim for the right shoulder. There was no notice of indexing or hearing, so the carrier obtained an IME in October 2023 for the March 2023 claim. The IME found no causal relationship. We obtained a release and subsequently got the records from 2020 showing extensive pre-injury history, which had been denied.

The 2020 claim was not for work but was listed as personal insurance and a non-work injury.  The records showed he was injured in the gym in late 2019 lifting weights. The claimant filed for short-term disability for the same with his doctor affirming it was not work related. In testimony the doctor actually provided the misrepresentation, changing his statement that the 2019 was work related.

When confronted his testimony fell apart asserting a 2019 non-work claim, a 2019 work claim, an OD claim and a 2023 claim, all for the same site needing the same treatment. We raised 114-a along with disallowance.

The judge did a very thorough job analyzing the case for a 2019 claim, an OD claim and a 2023 injury. The 2019 claim was barred for being untimely. She then disallowed any 2023 claim due to the lack of credibility in the both the claimant’s and doctor’s contradictory signed statements affirming the shoulder is not work related for short-term disability purposes and work-related for Worker’s Compensation purposes. In the end, everything was disallowed.

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 we stated, while surveillance is key, communication among all parties is crucial 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.

In securing the disallowances, information and open-communication is the key. The time frame or obtaining and securing defenses is limited in New York and quick action and communication on behalf of the employers and carriers made the disallowances possible.