LOIS Attorney Kristine Rosales successfully defended a WCL 114-a fraud claim against a claimant who failed to disclose work activity with a concurrent employer, resulting in the WCB imposing both the mandatory and discretionary penalties, barring the claimant from receiving any future indemnity benefits.
This is an established case to the right knee involving a claimant who went out of work and was voluntarily being paid by the insurance company under the presumption that the claimant was not working based on the claimant’s misrepresentations to his treating providers and the carrier’s IMEs. The carrier expended roughly $35,000.00 in workers’ compensation indemnity and medical benefits based on this misrepresentation. Our office argued that the combination and series of fraudulent acts by the claimant presented a clear picture of egregious behavior warranting the maximum mandatory and discretionary penalties with a lifetime ban from receiving indemnity benefits.
At the fraud hearing, the claimant’s attorney argued that the claimant’s non-disclosure of work activity is a mere miscommunication or oversight. We vehemently disagreed as we maintained our firm opposition that there is no miscommunication or oversight in this case — the claimant’s omission to disclose work status to obtain indemnity and medical benefits is fraud.
We further argued that from the time of the accident, the claimant had a multitude of opportunities to disclose his work status, but he failed to do so. We underscored the fact that when he followed up with the insurance carrier about his workers’ compensation checks on three occasions, he did not disclose his work status. When he was seen by his treating doctors, aggregating six different medical service dates, he again misrepresented his work status to influence the doctors to assess him with temporary total disability. He went on with this pattern of deceit when he was examined by the IMEs on two different occasions and he, once again, failed to disclose his work status and even noted in two different questionnaires that he was not working.
The Law Judge agreed with our argument that the claimant committed fraud and found a violation of WCL 114-a based on the claimant’s material misrepresentations regarding the extent of his activities, and, his limitations. Accordingly, the mandatory penalty was imposed from the date of his first misrepresentation shortly after the accident to the date of fraud hearing. Additionally, the WCB imposed the discretionary penalty of permanent disqualification from further wage replacement benefits was also imposed based on the claimant’s egregious attempt to downplay or minimize his activities. This saved the carrier from having to pay any future SLU award against this file.
