LOIS Proves WCL Section 114-a Using Surveillance of Intense Workout Routines

LOIS Associate Kristine Rosales and Paralegal Andrea Hayles successfully proved a WCL Section 114-a defense in a New York Workers’ Compensation case involving a Claimant who misrepresented to his doctors about his medical condition. The Claimant reported he could not drive or lift more than 5 lbs. At trial, Attorney Rosales had Claimant concede that he went to the gym for his rehabilitation and that he drove to the gym on multiple occasions. Attorney Rosales also offered the surveillance videos as proof to rebut the Claimant’s representation of exertional ability. She argued that WCL Section 114-a should be imposed based on the Claimant’s misrepresentation since the initial IME to present. The Law Judge upheld the position of Attorney Rosales. After review of the medicals and extensive notes from the numerous hearings previously conducted, the Law Judge found that the Claimant testified using a cane, but he only used it as a prop during the IME. The videos showed that the Claimant walking very slowly and appearing to be in pain but, in all the other surveillance videos, the Claimant was seen walking with a very normal gait even carrying a heavy backpack that he would fling into his pick-up truck. The Law Judge also noted that Claimant reported to his doctors that he could only lift 5 lbs., was unable to drive, could not bend, and had difficulties with his ADLS; however, the contemporaneous videos showed the Claimant intensely working out at the gym and drove to the gym himself. The Law Judge characterized such action as material misrepresentation. As such, the Law Judge imposed mandatory penalty from the IME and suspended payments. As a result of this favorable outcome, the Carrier’s exposure was significantly reduced.