LOIS Senior Associate Kristine Rosales and LOIS Paralegal Andrea Hayles successfully obtained a WCL Section 114-a finding, resulting in the maximum attendant penalties against a Claimant who failed to disclose work status in a New York Workers’ Compensation case. Attorney Rosales disclosed photos and videos of the Claimant showing that he was not totally disabled. Work status testimony was taken, and the Claimant confirmed that he has not returned to work in any capacity. At trial, the Claimant reiterated that he has not gone back to work in any capacity. He denied having any other source of income other than the Workers’ Compensation payments. He also confirmed that when he was seen by his treating providers that everything he represented as to his functional and exertional abilities, including restrictions, were true. Attorney Rosales proceeded with the presentation of the employer-witness, who credibly identified the Claimant, authenticated the photos he personally took showing the Claimant working on multiple dates, and testified that he found the Claimant outside of The Home Depot multiple times, looking for work.
On summations, Attorney Rosales cited case law supporting a finding of fraud for a failure to disclose work activities. She requested for a finding of fraud based on the fraudulent act of the Claimant, who misrepresented his disability to all the doctors and the Carrier. She argued that Claimant represented he did not have ability to work, but the record showed otherwise. She requested for the imposition of the maximum attendant penalties. Upon consideration of the evidence, the Law Judge ruled that the photos are very clear. The Claimant was shown painting, pushing a wheelbarrow, standing at a job site, and holding a window frame on multiple dates. The testimony of the witness presented by Attorney Rosales was found credible. As such, the Law Judge imposed mandatory penalties to commence on the first day of misrepresentation, rescinded awards, and also imposed a discretionary penalty of a lifetime ban on receiving future benefits. This saved the Carrier from having to pay any future LWEC award in this matter.
