LOIS Senior Associate Kristine Rosales and Paralegal Andrea Hayles prevailed on appeal of a WCL Section 114-a violation and obtain mandatory and discretionary penalties in a New York Workers’ Compensation claim against a Claimant who repeatedly misrepresented to the doctors his exertional ability and deliberately omitted his out-of-work activities. In this case, the surveillance of the Claimant depicted him walking, driving, climbing up and down a ladder, and using a pressure washer for about half-hour bending over repetitively. It showed that Claimant’s non-work activity was inconsistent with his disability, and this was seen immediately after stepping out of the IME facility.
Fraud was raised by the Carrier and the record was fully developed. Attorney Rosales presented the IME, who confirmed that he originally found Claimant at 75% disability but after viewing the surveillance, he changed his finding to 0%. He noted that the no-disability finding was based on the fact that Claimant was walking smoothly and without any visible device, reaching overhead, and climbing a ladder up and down. During trial, Attorney Rosales presented the investigator who confirmed what was shown in the surveillance video. On cross-examination of the Claimant, Attorney Rosales obtained a damaging concession from the Claimant who testified that he did not disclose his pressure-washing work activities to his treating doctor. Attorney Rosales argued that the Claimant engaged in severe exaggeration of pain and symptom magnification and omitted his pressure-washing activities. The Law Judge found a WCL Section 114-a violation and imposed the mandatory penalties. While the Law Judge imposed mandatory penalties, the awards were reinstated after a surgery, and the discretionary penalty of lifetime ban on indemnity awards were not assessed.
On appeal, Attorney Rosales requested for the adjustment of the imposition of the maximum mandatory and discretionary penalties, which should be continued from the first day of misrepresentation to the date of the fraud trial. Attorney Rosales also requested that discretionary penalty of lifetime ban on indemnity benefits should likewise be imposed based on the egregious nature of the Claimant’s misrepresentation. She further argued that Claimant had ample opportunity to address the issue of whether he knowingly materially misrepresented before the doctors, but he was committed to his furtive ways and did not rectify the matter.
The Board Panel ruled that upon review of the video evidence, they confirmed that Claimant was observed using a pressure washer, which entailed utilizing a ladder, moving the ladder down the length of the wall, climbing on higher steps of the ladder, using a long wand of pressure washer, and using both hands reaching overhead and back to his left, with his neck flexed backward as he flexed his lumbar spine. The motions appeared fluid and uninhibited, and the video continued for approximately half an hour. Ultimately, the Board Panel agreed with the position of Attorney Rosales and ruled that the violation warranted the imposition of mandatory penalty from the date of the first misrepresentation until the fraud trial, with discretionary penalty of permanent disqualification from awards. As a result of this favorable outcome, the Carrier is not liable for any indemnity payments related to the case.
