Claimant Credibility: The Achilles Heel of Weak Claims

In the case of Donovan v. BOCES Rockland County, 880 N.Y.S.2d 783 (June 11, 2009), the claimant alleged injuries to her left shoulder arising out a a physical altercation with a student (the claimant was a ‘speech therapist’). The Workers’ Compensation Law Judge (WCLJ) found that the ‘credible medical evidence’ established that the left shoulder injuries were work-related and the surgical repair was ‘necessary.’ Compensation was awarded. The parties appealed the the Workers’ Compensation Board (WCB), which exercised its discretion to review the case as per WCL Sect 123. The WCB found that the left shoulder claims were “not credible” in reversing her award.
The case was appealed to the Appellate Division by the claimant, who argued that the WCB erred in finding she lacked credibility.
On the credibility front, the appeals court granted deference to the findings of the WCB, stating that the Board decision would not be disturbed if it was supported by ‘substantial evidence, despite the evidence of evidence which may have supported a different result.’ The WCB had relied upon videotape evidence of the claimant’s condition, as well as a pattern of “exaggerations which lacked consistency and escalated in magnitude over time.” The Appeals panel found that the WCB’s decision – that the claimant lacked credibility- was amply supported by the record.
The claimant also objected that she did not have the opportunity to present her arguments the WCB before the Board reviewed (and reversed) the Workers’ Compensation law Judge’s decision. The Appellate Court informed the claimant that “it is well settled that the Board’s broad jurisdiction includes the power, on its own motion or on application, to modify or rescind a WCLJ’s decision.”
Practice tips: First, make use of the application to the WCB for review of unfavorable decisions rendered by a Workers’ Compensation law Judge. Next, the employer in this case was well-armed: videotapes can be powerful evidence of malingering. When added together with a penchant for exaggeration, a ‘credibility’ challenge may be possible. Finally, it is easier to defend a decision of the WCB – so long as it is based on ‘substantial’ material evidence- than it is to appeal such a decision to the Appeals Court.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com