LOIS attorney Nicholas Minerva recently won a decision favorable to his client, a national insurance carrier and their insured, in a case involving concealment of prior medical history shown at trial. The Court ruled that the claimant had committed fraud and as a result, all benefits issued were rescinded.
The claimant raised the neck as an injured body part in his Workers’ Compensation claim. Prima facie medical evidence was found for the same, and the Carrier was directed to produce an Independent Medical Evaluation (IME) to comment on causality. Although the IME found the alleged neck injury to be causally related to the claim, an ISO report we had procured, revealed a prior Workers’ Compensation claim from 1999 involving the neck. The claimant failed to document this prior injury on his C-3 and further failed to apprise our IME of the prior neck injury when our IME was forming an opinion regarding causality.
As such, we raised the issue of fraud (a violation of Section 114-a) on the claimant and requested his testimony regarding his failure to report the prior injury. The case was then continued for the claimant’s testimony.
At the subsequent hearing, the claimant testified that he did not recall the prior injury even though he had missed several months of work due to the same. Unfortunately, the WCLJ found the claimant’s testimony credible and entered a finding that the claimant had not engaged in fraud. We then appealed that decision.
The Board Panel then issued its Memorandum of Decision which modified the WCLJ’s decision to find that the claimant did make a material misrepresentation in violation of Section 114-a, thus committing fraud. Specifically, the Board Panel found the claimant’s assertion that he did not recall the claim implausible and noted that the claimant had informed his own doctor of the prior injury but failed to disclose that same injury on the C-3 filed one month prior.
Therefore, the Board Panel modified the WCLJ’s decision and entered a finding that the claimant had violated Section 114-a of the Workers’ Compensation Law. In doing so, the Board Panel imposed the mandatory penalty and rescinded all awards that were at least partly directly related to the claim for the neck.
- CASE: JH v. BMMS
- CLIENT: A National Insurance Carrier
- DATE OF DECISION: July 21, 2022
- LOIS ATTORNEY: Nicholas Minerva