LOIS Senior Associate Nicholas Minerva obtained a successful WCL Section 114-a finding in a New York Workers’ Compensation claim. This claim pertained to a Claimant was continuously obtaining a total disability finding from the IMEs, all who noted that the Claimant presented with a cane and back brace. At a particular IME, during the physical examination, the IME doctor observed that “the Claimant has a slow cadence and antalgic limp” and uses a cane. Ranges of motion for the back were recorded as less than half in all planes. In the questionnaire that was signed by the Claimant, the Claimant indicated that he wears a right knee brace and a back brace. When asked how he spends his days on the questionnaire, which specifically asks if he takes walks, the Claimant wrote that he attends physical therapy three times per week. The IME found a temporary total disability.
At the hearing, the Carrier disclosed that covert surveillance was taken of the Claimant and raised a WCL Section 114-a fraud defense. Six days after fraud had been raised, the Claimant attended another IME. That doctor reported that the Claimant indicated he had difficulty walking, bending, climbing, sleeping, lifting, pushing, and pulling. He indicated that he uses transportation services to attend some IMEs, but that his wife sometimes drives him when available. On the questionnaire, when asked how he spends his days, he wrote the same answer as in the prior IME, but added “reading,” painting a very sedentary picture of his day-to-day life. The Claimant then testified that he does not always need the assistive devices, and his abilities vary from day to day. However, the video surveillance showed the Claimant driving and ambulating for hours shopping with no antalgic gait and in no apparent distress wearing only sandals on multiple days in June. He is also seen bending down with apparent full range of motion. Then, at his IME examination, he uses his cane and back brace, and his wife drove him.
Based on Minerva’s cross-examination and written summations, the Workers’ Compensation Law Judge found that the Claimant had committed fraud. Moreover, the Law Judge found the fraud so egregious that he institutes both the mandatory and discretionary penalties, which precludes the Claimant from any further indemnity benefits for life. Thus, the Carrier is not liable for any future indemnity benefits.
