Latest Employees’ Compensation Choices on 114-a Reveals Fraud Does not Pay in New York

The central theses

  • The New York Workers ‘Compensation Law 114-a gives the Workers’ Compensation Board the power to exclude a beneficiary from receiving lost work time compensation if he or she is receiving compensation under Section 15

  • It also gives the Board the power to disqualify an applicant in order to influence the decision regarding such payment if an applicant knowingly makes a false statement or representation regarding an material fact

  • Surveillance is a key to obtaining a strong mandatory and discretionary diagnosis

The New York Workers ‘Compensation Law 114-a gives the Workers’ Compensation Board the power to exclude a beneficiary from receiving lost work time compensation for compensation under Section 15 (i.e. compensation for lost wages) or for the purpose of influencing a decision related thereto upon such payment (ie knowingly making a false statement or statement of an material fact).

The board has consistently divided the severity of the violation into two categories: mandatory and discretionary. The mandatory contractual penalty is equal to the number of weeks that match our final evidence. This typically runs from the first date of surveillance or the first date we can prove a contradicting testimony to the date of the judge’s decision. The longer the period and the scope of the evidence, the longer the mandatory period.

As defense counsel, our goal is to prove to the judge that the plaintiff’s behavior is “outrageous,” which triggers the discretionary period. In the Board of Directors’ extensive history of fraud, there is no specific definition of outrageous. If we succeed in proving the enormity, the preclusive period can be extended indefinitely. Goldberg Segalla’s New York team have consistently succeeded in aggressively leading Trial 114-a and proving to the judge that the plaintiff’s conduct was egregious.

Some of our recent agency matters are:

  • In the medical reports and his testimony, the plaintiff alleged very restricted mobility, painful straightening and walking, inability to put on shoes, bend over, use stairs, and be dependent on a walking stick. The video showed that the plaintiff only used the stick to participate in the IME, to obtain disabled signs from the DMV, and as an ice scraper. He was seen gardening for hours, often using his stairs without a cane or handrail for support; play with his granddaughter; Repairing his mobile home; and blowing snow. The IME report indicated dependence on a walking stick, inability to move, and limited range of motion – originally that meant 67 percent disability. After looking at the monitor, he reported no changes or inconsistencies, which forced us to argue that our IME was not believable. Fortunately, both the judge and the board used common sense, read the medical reports, listened to his testimony, and compared it to the video. The mandatory and unrestricted ban has been established and confirmed. The plaintiff continues to appeal to the full board and the third department, but we expect the decision to be confirmed.
  • In this case, the plaintiff consistently denied previous damage and any ability to work. Goldberg Segalla received records showing that the plaintiff actually had recent treatment for the same established body sites, including the need for a medical device less than four months prior to the recorded injury. In addition, the plaintiff provided his own evidence of further fraud by showing his tax records to claim concurrent employment to increase his own AWW. By developing this data set, we have provided evidence that the applicant worked for several lift-pool opportunities during these periods of alleged total incapacity for work. The judge returned with a life ban just nine days after the bill was filed. In this matter, the claim was made for the right knee, but the applicant tried to include the neck, back and left hip.
  • During the creation of the file, surveillance was carried out which showed that the applicant was doing a lift or construction work and that he had far greater abilities than indicated in the medical record. At the first testimony, the plaintiff denied having worked at least four times. At the second hearing, he admitted “helping a friend” but refused to admit that he was paid or that he thought it “worked” and continued to give vague answers about his activities. Not only did the judge ruling on both mandatory and lifelong discretion, but also found that attempted stretching of the neck, back, and hips was not allowed. The internal instructions in the decision referred the case to the General Inspectorate for the investigation of fraud.
  • The plaintiff filed a new claim with a new employer for alleged work injury during a period when he was allegedly severely disabled and is receiving benefits from our claim. Not only has Goldberg Segalla clearly worked without disclosing his new job, but has also produced evidence that the plaintiff made false statements about the extent of his previous injuries. The plaintiff’s surveillance also revealed that he appeared on his doctor visits and relied heavily on tools that were absent at every other point in the videos. The plaintiff’s attorney attempted to rule out our surveillance as a violation of HIPAA and a violation of New York Health Act. The judge allowed explanations and summaries in this regard and then summarily rejected the argument. He was given a full 114-life ban for his efforts.
  • In this matter there was already a justified claim to the plaintiff’s back. The plaintiff attempted to extend the case to his right knee, denying any previous or recent injuries. Goldberg Segalla found in a lawsuit that the plaintiff had a subsequent MVA in which he injured his right knee. Despite the fact that the wearer IME was causally related to the right knee, we argued that the attending physicians’ views of a causal relationship, as well as the IME, might not be credible due to the applicant’s attempts to misrepresent his medical history. The judge not only denied the right knee on our file, but also ruled a lifetime ban on compensation under 114-a due to the enormity of the plaintiff’s multiple attempts to collapse his knee while hiding the real story.
  • The applicant’s doctors remained completely incapacitated, as did the carrier’s IME doctors for the duration of the claim. All reports showed severely restricted mobility, inability to move, and constant pain. Social media evidence was obtained showing the plaintiff in go-karts and playing on the beach with his children. This was coupled with monitoring the plaintiff, who limped and used his car and railing as aids, was barely able to enter the IME but cleared his car and went shopping for the rest of the day without changing pace. The plaintiff’s only defense was that his military training would not allow him to show pain unless he was in a doctor’s office. Neither the judge nor the chamber found this defense credible and imposed a life ban.

The findings in the cases mentioned were only possible after weeks and months of work in coordination with our clients and investigators. Obtaining a 114-a result, especially a lifetime suspension, requires a team approach and Goldberg Segalla enjoys working with investigators, shippers, administrators and employers to achieve the best possible result for our customers.

Surveillance is a key to obtaining a strong mandatory and discretionary diagnosis. We recommend any of our customers who feel that the claim is not progressing or have evidence of suspicious activity to coordinate with our team.

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