Lois Law Firm Construction Practice Team Leader, Tashia Rasul, successfully won a judgment of Section 114-a fraud at the Board Panel level after the workers’ compensation Law Judge found no fraud and noted that the carrier’s application for a fraud finding was borderline frivolous. This fraud finding was not based on the usage of covert surveillance, but instead on documentary evidence provided by the claimant himself, his testimony, and his statements to his doctors and the IME doctors, that were fully contradicted by records of treatment from prior to the date of loss.
One of the body parts established in this claim is the neck. The claimant failed to include any prior neck treatment on his C-3 and C-3.3, and when he initially testified regarding prior injuries, he stated that he did not receive prior neck treatment, even though he did have a prior injury to it “a while ago”. The claimant proceeded to treat for his neck post-loss, neglecting to tell all of his doctors about the prior injury, and refusing to fill out the IME questionnaires or telling the IME doctors it. Of course, this led to the doctors finding the treatment he needed is causally-related to the subject accident. In addition, the claimant did reveal to some of his doctors and the IME doctors that he sustained prior injuries to other body parts, but never mentioned the neck.
To prove fraud, Tashia developed the record by utilizing the client’s investigation showing prior treatment and subpoenaing the claimant’s prior records, taking the claimant’s testimony on prior injuries, examining the claimant’s post-loss treatment records and IMEs, and taking the doctors’ deposition on what exactly the claimant disclosed to them and whether knowledge of the prior injury would have changed their treatment course. The pursuit of fraud required digging into the claimant’s past medical history, which is oftentimes overlooked, as well as a scrupulous understanding and synthesis of the record, which Tashia used as a basis for her fraud arguments.
At the trial level, the claimant testified that he made a “mistake” by not disclosing the prior neck injury to his doctors and the IME doctors, and that he did not “realize” the prior treating doctor had planned more treatment for him so he did not think it was “important”. This “mistake” and the claimant’s lack of “realization” was essentially the basis for the Law Judge not finding fraud, even though Tashia argued that the claimant omitted the prior neck treatment on his C-3 and C-3.3; he had multiple opportunities to tell the doctors about the prior neck treatment and failed to do so, but told them about injuries to other body parts; and, that the doctors were not fully informed of the claimant’s treatment history and they testified that their treatment course may have been different had they known about the prior injury.
Tashia appealed the Law Judge’s finding of no fraud, and at the Board Panel level, Tashia reiterated her arguments, which the Board Panel agreed with. The Board Panel found that there is no excuse for a claimant to omit information regarding prior injuries and treatment on a C-3 and C-3.3., as these forms expressly ask for this information. It also reasoned that the claimant had multiple opportunities over the course of two years to tell the doctors about the prior neck injury, but chose not to. The Board Panel concluded that these omissions rise to the level of material misrepresentation as they impacted the doctors’ opinions on treatment, and indemnity payments as a results, and given that the omissions were from the inception of the claim and continued over two years, both the mandatory and discretionary penalties are warranted. The Board Panel rescinded all awards in this claim.
This win is monumental for the client not only because all awards were rescinded and all future indemnity benefits have been suspended, but also, because the claimant has an open general liability claim, and this fraud finding will help to reduce exposure on that claim as well. This finding will help the client save hundreds of thousand dollars, if not more, on both the workers compensation and general liability claims combined!
CASE: SRC v. Construction Entity
CLIENT: Construction OCIP
DATE OF DECISION: August 20, 2020
LOIS ATTORNEY: Tashia Rasul, Esq.
Construction Defense at LOIS
Our Construction Defense Team is led by Partner Tashia Rasul, Esq. This dedicated team exclusively handles workers’ compensation claims arising out of construction accidents. Tashia’s expertise lies in complex coverage issues, wrap-ups, and claims arising out of catastrophic injuries. As part of her practice, Tashia frequently visits accident sites and provides on-site training to employers regarding workers’ compensation claims, as well as to develop defense strategies. Tashia is the author of the “Defending Construction Claims in New York” Handbook, available here.
Tashia regularly counsels clients on the importance of coordinating defense of workers’ compensation and general liability claims, and has a track record of favorable outcomes as a result of such coordination. In concert with Lois Law Firm’s recommended protocol for coordinating workers’ compensation and general liability defense, Tashia led a discussion of the protocol at the 2019 Annual Claims and Litigation Management (CLM) Conference to educate her peers on the importance of joint defense.
Who We Represent
We represent large project owners, OCIP and CCIPs, insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers’ Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.
We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have “hearing attorney” or a “negotiation attorney” or “appeal department” or anything else! All of our attorneys handle all of those roles – meaning cases are not “passed around” as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.
Within seven (7) days of referral, we provide your adjuster with a comprehensive legal action plan and budget, setting out the likely exposure, plan of action to get the case to close, analysis of any potential legal defenses, and identify the handling/trial attorney and paralegal assigned to the case. We provide you with any court- or venue- specific information, such as who the judge is, evaluation of the treating providers, best IME doctor to use, etc.
All of our attorneys are 100% dedicated to defending employers and carriers in worker’s compensation claims. While we do some associated general litigation (usually subrogation related to a workers’ compensation claims we handle) all LOIS attorneys focus their practice on workers’ compensation.
We have tried dozens of cases to conclusion this year in each of the courts we go to. We are aggressive in pursuing appeals and our practice has an above-average record on winning appeals.
We Handle the Entire State.
We appear in all New York City courts and all “upstate” hearings. We handle all workers’ compensation hearing locations in the State of New York.
City hearing points:
- Queens (Jamaica)
- Staten Island
- White Plains
- Garden City
We attend all Hearing Points statewide:
- Albany (Menands)
- Newburgh (New Windsor)
- New City
- Saranac Lake
More from the Construction Defense Team.
Join the Construction Team for upcoming training events.
Contact partner Tashia Rasul, Esq., Construction Defense Team Lead, with questions or to make referrals.