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

KEY TAKEAWAYS:

• WCL 114-a provides the Board authority to disqualify a claimant from 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.

• While surveillance is key, communication among all parties is crucial to obtaining a strong mandatory and discretionary finding. We recommend to our clients who feel a claim is not progressing, or have any indication of suspicious activity, to coordinate with our team.

As a part of our Quarterly Practice Group Update, we are pleased to share our next installment of examples demonstrating our continued success in the area of fraud litigation.

This report was originally conceptualized nearly three years ago as a one-time publication in May 2021. However, due to the great work of our dedicated attorneys, we are very pleased to be able to continue to relay our successes.

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 G3452462 “ISO the Truth”

This is an established occupational disease claim for the back, where per the C-3 and per discussion with the treating doctor, the claimant denied any prior back treatment or injuries.  The carrier obtained an ISO report, which showed several motor vehicle accidents. After obtaining over 400 pages of records which detailed treatment, we raised 114-a.

The treating doctor testified that at the onset of treatment, they specifically asked her if she had a history of motor vehicle accidents, which she denied, saying that her back had been “perfect.”

When confronted with the evidence, the claimant testified and admitted to the accidents, which resulted in legal action, lost time and monetary benefits. The judge implemented a mandatory and discretionary penalty exceeding 3 years of benefits.

WCB G3412473 “My Fraud ate my Home Work”

This is an established April 2023 low back injury. Our client began voluntary payments before the claim was established at the total rate based on medical records that noted extreme back pain with spasms down the left leg into his foot. The claimant could not drive more than short distances; he could no longer do activities like riding a bike, running, fishing, hiking, or doing light work around the house.

Surveillance showed the claimant driving, exiting and entering his vehicle with no signs of struggle, packing and loading the back of his pickup truck, jumping out of the back of his pickup truck, including carrying boxes of automotive parts and visiting home improvement stores lifting multiple sheets of drywall. Additional surveillance showed him visiting private residences appearing to be preparing for work, using ladders, bags of cement and leveling wet cement.

The judge found a permanent disqualification of all lost time benefits. The claimant has appealed but we anticipate no modification.

WCB G3136536 “YTD Strikes Again”

Established claim for neck, back, bilateral wrist contusion and abdominal wall strain. The case was in litigation for labor market attachment. We appealed the judge’s April 2023 denial of suspension of awards, arguing insufficient demonstration of attachment. The November 2023 Board Panel affirmed, the awards and retroactive monies were paid to the claimant as well as ongoing installment payments.

At a hearing for permanency in February 2024, the claimant disclosed she had been working since the previous June. When her testimony was taken, she believed the money was owed to her for reduced earnings, but her YTD on her payroll indicated otherwise. She attempted to downplay her return-to-work income. She attempted to claim she had informed her attorney, but could not specify when, to whom or how the conversation went. The judge asked the claimant if she still had the money, and she did not. Due to the claimant’s lack of mitigating reasons and evasiveness in testimony, a lifetime ban was 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 G3559640 “Time and Place Matter”

This is an asserted occupational disease claim for the hands, wrists and elbows, allegedly raised from the claimant’s light duty position. The case was denied as the employer reviewed the C3 and realized that the claimant’s job description was not accurate. The case was controverted and through that process, his doctor testified that he understood the claimant’s job was much heavier duty in nature, which it was … several years prior with a different employer.

We argued the treating doctor was operating off an insufficient understanding of the claimant’s job duties and the judge agreed, disallowing the case entirely.

WCB G3414507 “The Devil is in the Details”

This is an asserted claim arising out of an allegation of injury while unloading a truck. The claimant denied prior injuries to the alleged body sites. The employer noticed discrepancies in the C-3 concerning the date and time of the injury, work dates, the lack of onsite medical personnel, and where and when he first treated. These concerns were relayed via the insurance carrier and the case was controverted.

In testimony, the claimant’s inconsistencies turned into glaring problems with credibility. His version of mechanism of injury events, to whom he spoke, where he first treated, whether there was or was not medical personnel on site and when he informed his employer varied greatly and created too much inconsistency for the law judge to ignore. The claim was disallowed.

WCB G3552965 “Hide and Seek”

This was an asserted claim for the low back, neck, shoulders and knees as an injury, asserting a specific incident on 7/8/2022. However, per the C3, the claimant did not treat until mid-2023. The case was controverted as the duration between onset and treatment raised red flags.

In testimony, it became clear that the claimant had been treating much more extensively and not made those records available. The file was placed on hold until the claimant produced the required releases. Development of the record fleshed out that the doctor who provided PFME from September 2022 was told the claimant hurt himself at work on 7/8/2022.

The additional medical records from a different medical provider, however, showed the first date of treatment as July 11, 2022 and the recorded narrative was that the claimant denied it being work-related and did not know how it happened. The claimant alleged to have a witness, who failed to appear at hearing.

Due to failure to produce his own witness and inconsistencies as well as apparent attempts to hide those inconsistencies, the judge disallowed the claim.

WCB G3671294 “A for Imagination”

This is an asserted claim for the neck, back, head, bilateral shoulders, right arm, right elbow, right hand, right wrist, bilateral hips, bilateral knees, bilateral legs & bilateral ankles/feet from an asserted August 2023 date of injury. The asserted injury took place on a construction site when rebar fell onto the claimant.

The employer informed the carrier and us that the specific site noted by the claimant was an empty site and, as of the date in question, there were no materials or workers at the location.  The medical records and witnesses did indicate that a minor incident might have occurred, but nothing like the claimant described, nothing that required any treatment, and not including the body sites raised.

In reviewing the medical record, each doctor had recorded significant, differing details over what the mechanism of injury actually was, as explained by the claimant.

The law judge disallowed the claim entirely based on employer witness testimony and the discrepancies in the medical record.

G2113037 “The Hose Knows”

This is an asserted claim for the right shoulder and right elbow, specifically resulting from the pressure created when disconnecting a hydraulic hose from a skid loader. The medical record was sparse and inconsistent due to an unrelated incarceration before the pre-hearing conference.

The claim was controverted as the employer witness informed the carrier that the injury could not have happened the way it was described. The claimant described applying significant pressure to a 5-inch hydraulic hose to disengage an extension on a skid loader. The assertion was, after great effort, when the hose disengaged the force shot the hose into the claimant’s upper arm, causing a jolt.

The employer witness testified, but more importantly, we were able to secure not video of the incident but of the employer/owner demonstrating attaching and disengaging the three-quarter-inch hose from the skid loader with ease, showing not only a total lack of pressure, but minimal effort in order to accomplish the goal. The video demonstrated both with the skid loader running and shut off.

Based on the video demonstration and it is completely lack of consistency with the claimant’s version of events, the claim was disallowed.

WCB G3322660 “You missed a spot…”

This is an asserted 2022 claim arising from an incident falling off a ladder while cleaning windows at a large building project in Manhattan. There was initially a dispute over whether the claimant worked for the building or the
cleaning company.

We were able to discuss the matter with the employer, who provided sufficient evidence that she did not work for them. When confronted in testimony, she was unable to describe any characteristics of her alleged supervisor and could not name any supposed co-workers. The claimant’s version of the significant events broke down in testimony, including what equipment she had used, where she got the equipment, what building she was working in, and what time of day the incident occurred.

The judge could not get past the credibility issues and disallowed the claim entirely.

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 before, while surveillance is key, communication among all parties is crucial to obtaining a strong mandatory and discretionary finding. We recommend to 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 of 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 for their hard work and dedication and look forward to future successes and publications.