Workers' Compensation Law [WCL] §114-a (1) provides that a claimant who "knowingly makes a false statement or representation as to a material fact ... shall be disqualified from receiving any compensation directly attributable to such false statement or representation."* Further, a determination by the Board as to whether a claimant violated WCL §114-a will not be disturbed if supported by substantial evidence.
After reviewing the testimony and surveillance video** of Claimant, a WCL Judge concluded that Claimant's activities did not rise to the level of a WCL §114-a violation. The Workers' Compensation Board, with one panel member dissenting,*** however, concluded otherwise, holding that Claimant had violated WCL §114-a, imposed a mandatory penalty and permanently disqualified him from receiving future wage replacement benefits. The full Board denied Claimant's application for full Board review based on Claimant's failure to comply with the governing regulation set out in 12 NYCRR 300.13. Claimant then appealed both Board decisions.
The Appellate Division said that "... feigning the extent of disability and pretending to be unable to perform most tasks and body movements for the purpose of influencing any determination regarding workers' compensation benefits constitute false representations of material facts within the meaning of Workers' Compensation Law §114-a (1)" and such misrepresentation "need to affect the dollar value of an award to be material."
As the Board found, the video depicts Claimant performing many tasks — with no sign of impairment or difficulty — that are inconsistent with or, in some cases, "in direct contrast to" his representations to medical providers and evaluators, and contradicted his purported severe functional limitations and limited performance during a functional capacity evaluation [FCE].
Concluding that the Board's finding that Claimant had made false representations regarding material facts is supported by substantial evidence, the Appellate Division declined to disturbed the Board's determination. In the words of the court, "the Board adequately explained its reason for disqualifying [Claimant] from receiving future benefits, based upon its finding as to the "nature and extent of the misrepresentation," which it found to be "egregious."
Finally, the Appellate Division, citing Matter of Losurdo v Asbestos Free, 1 NY3d at 267, said considering Claimant's substantial, repeated misrepresentations of his functional abilities and condition, it was not persuaded by Claimant's argument that imposing the discretionary penalty of permanent disqualification for workers' compensation benefits was disproportionate to his misrepresentations.
* See Losurdo v Asbestos Free, 1 NY2d 258.
** A surveillance video of Claimant taken on three days in November 2016 reflects that "Claimant was observed getting in and out of his truck, driving and walking around stores and his property without any apparent difficulty, as well as carrying floor boards into and out of a store and repeatedly bending over at the waist to inspect merchandise or to remove items from low store shelves. Further Claimant was seen placing objects, including floor boards and boxes, on the floor, bending over and picking up a box from the floor, carrying a box with one hand, twice pulling down an overhead garage door with one hand, bending and reaching for objects and vigorously sweeping his garage."
*** The dissenting panel member agreed that Claimant had violated Workers' Compensation Law §114-a but would not have imposed the discretionary penalty of permanent disqualification. The Appellate Division noted that "[a]lthough full Board review would have been mandatory due to the dissent of one panel member, such review required a proper, timely application, including compliance with the completion requirements for RB-89.2 applications (see 12 NYCRR 300.13 [b] [4]). Moreover, direct judicial review of the Board panel's decision is also permitted (see Workers' Compensation Law §23) and, indeed, has herein provided review of all issues that could have been considered by the full Board."
The decision is posted on the Internet at: