NY Employer’s Surveillance of Injured Worker Fails to Establish Fraud

A New York appellate court affirmed a decision by the state’s Workers’ Compensation Board that an employer’s surveillance videos and testimony of its private investigator, which primarily showed a workers’ compensation claimant sitting or standing outside a café smoking, talking on a cell phone or drinking coffee did not establish that the claimant had violated N.Y. Work. Comp. Law § 114-a [see Lleshi v. Dag Hammarskjold Tower, 2014 N.Y. App. Div. LEXIS 8989 (Dec. 31, 2014)].

The court noted that the claimant himself acknowledged that he spent most of his time at a membership café and occasionally, among other things, unlocked the café door in the morning and swept the premises in exchange for the owner, his cousin, allowing him to sleep in a room above the café following marital difficulties. According to claimant, he received no compensation for any minimal activity that he performed at the café.

The appellate court added that inasmuch as the Board found claimant’s testimony to be candid, consistent and truthful, there was substantial evidence supporting the Board’s decision not to find a violation of § 114-a; it would not disturb the decision despite the existence of evidence that would support a contrary result.