In this video, Greg Lois provides and overview and answers questions about raising fraud in New York Workers’ Compensation claims. This video is from a live webinar provided to clients on March 15, 2021.
In this video, Greg talks about:
What constitutes claim fraud under Section 114-a of the New York Workers’ Compensation Law;
How and when to raise fraud in a litigated case;
The use of surveillance video in establishing fraud;
Lois Law Firm Construction Practice Team Leader, Tashia Rasul, successfully won a judgment of Section 114-a fraud at the Board Panel level after the workers’ compensation Law Judge found no fraud and noted that the carrier’s application for a fraud finding was borderline frivolous. This fraud finding was not based on the usage of covert surveillance, but instead on documentary evidence provided by the claimant himself, his testimony, and his statements to his doctors and the IME doctors, that were fully contradicted by records of treatment from prior to the date of loss.
One of the body parts established in this claim is the neck. The claimant failed to include any prior neck treatment on his C-3 and C-3.3, and when he initially testified regarding prior injuries, he stated that he did not receive prior neck treatment, even though he did have a prior injury to it “a while ago”. The claimant proceeded to treat for his neck post-loss, neglecting to tell all of his doctors about the prior injury, and refusing to fill out the IME questionnaires or telling the IME doctors it. Of course, this led to the doctors finding the treatment he needed is causally-related to the subject accident. In addition, the claimant did reveal to some of his doctors and the IME doctors that he sustained prior injuries to other body parts, but never mentioned the neck.
To prove fraud, Tashia developed the record by utilizing the client’s investigation showing prior treatment and subpoenaing the claimant’s prior records, taking the claimant’s testimony on prior injuries, examining the claimant’s post-loss treatment records and IMEs, and taking the doctors’ deposition on what exactly the claimant disclosed to them and whether knowledge of the prior injury would have changed their treatment course. The pursuit of fraud required digging into the claimant’s past medical history, which is oftentimes overlooked, as well as a scrupulous understanding and synthesis of the record, which Tashia used as a basis for her fraud arguments.
Construction Defense Team Associate Jonathan Mallozzi successfully obtained a fraud ruling (“114-a finding”) favorable to the employer due to the claimant’s concealment of prior medical treatment. The Court ruled that the claimant had committed fraud and imposed a penalty of no further indemnity benefits as a result.
This claim was established for the right shoulder, right calf, right elbow, neck, left shoulder, right wrist, and lower back. In his C-3 dated February 25, 2019, the claimant alleged that when he was taking equipment downstairs, he tripped over a garbage bag that was left on the stairs and fell down the stairs. The claimant testified that he was only ever involved in one motor vehicle accident involving a parked car. However, through thorough investigation, records were discovered for an accident where the claimant was struck by a reversing vehicle while crossing the street. It was also discovered that the claimant underwent comprehensive treatment in connection with this prior claim. However, he failed to disclose it when he testified in this claim.
After extensive development of the record utilizing these prior records, cross-examination of the claimant, and arguments made by Jonathan that the claimant made a material misrepresentation by failing to disclose this prior accident and treatment, the Law Judge found fraud under WCL Section 114-A. The Law Judge reasoned that the claimant did not reveal prior treatment when asked about it under oath or to any treating or IME physician, and this is material as the treatment involved body parts that were allegedly injured in the instant claim.
This finding of fraud was a tremendous cost-savings win for the client, as it curbed indemnity exposure in a claim that could have potentially ended with a high LWEC finding.
LOIS attorney Nicholas Minerva recently won a decision favorable to his client, a national insurance carrier and their insured, in a case involving concealment of prior medical history shown at trial. The Court ruled that the claimant had committed fraud and as a result, all benefits issued were rescinded.