Videotape Surveillance Dooms Former NY Firefighter’s Right to Continued Wage Replacement Benefits
A New York appellate court affirmed a finding by the state’s Workers’ Compensation Board that a former fireman violated N.Y. Workers’ Comp. Law § 114-a when he represented in a functional capacity evaluation that he was unable to lift or carry objects, unable to kneel, or walk more than half a block [Matter of Swiech v City of Lackawanna, 2019 N.Y. App. Div. LEXIS 5347 (3rd Dept., July 3, 2019). Claimant’s treating physicians relied on that FCE and other representations made by claimant, concluding that claimant had difficulties with virtually all facets of daily life. Videotape surveillance revealed otherwise, held both the Board and the appellate court. The Court ruled that the Board was within its discretion to impose the disqualification penalty.
Background
Claimant, a former firefighter, established a work-related injury to his back in 2000. and to his neck in 2007. He had cervical fusion surgery in 2008 and retired. In 2010 he underwent lumbar surgery. In 2016, the parties addressed issues of permanency and apportionment and the employer’s workers’ compensation carrier conducted an independent medical exam finding that claimant had a marked permanent partial disability. A functional capacity evaluation (“FCE”) was performed in June 2016, claimant’s treating physicians were deposed and, at a November 2016 hearing, the carrier disclosed the existence of a fraud investigation.
Claimant then testified and the carrier raised the issue of whether claimant had violated N.Y. Workers’ Comp. Law § 114-a. After reviewing the testimony and surveillance video of claimant taken earlier that month, a WCLJ concluded that claimant’s activities did not rise to the level of a § 114-a violation. The Board, with one panel member dissenting, concluded that claimant had violated § 114-a, imposed a mandatory penalty and permanently disqualified claimant from receiving future wage replacement benefits. The dissenting panel member agreed that claimant had violated N.Y. Workers’ Comp. Law § 114-a, but would not have imposed the discretionary penalty of permanent disqualification. The full Board denied claimant's application for full Board review and claimant appealed.
Claimant’s Representations during FCE
Based upon claimant's representations and performance during the FCE, the evaluator concluded, as relevant here, that claimant was unable to “lift or carry any weighted objects” and could not pick up any objects from floor level. He was unable to kneel, crouch, reach for an object or complete any of the balance tasks, had limited lumbar flexion and presented as unable to lift overhead due to restricted range of motion. Claimant reported that he could only walk one-half block, which would require 8 to 10 minutes before the onset of back pain, and was unable to carry a box 25 feet. Based upon his performance, the FCE evaluator concluded that claimant had “marked functional limitations” related to his cervical and lumbar spine and was only capable of less than sedentary physical demands. Based, in part, upon the FCE, claimant’s treating orthopedic surgeon concluded that claimant could not lift any weight and was unable to carry, kneel, bend or reach overhead, and rated him as having a less that sedentary exertional ability. The orthopedist concluded that claimant had “significant difficulty with everything.” Claimant’s internal medicine physician agreed.
Video Tells Another Story
The surveillance video of claimant taken on three days in November 2016 reflected 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. He 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.
A November 13, 2016 video was particularly significant, said the appellate court. That video depicted claimant twice getting down on his knees and then on one knee and one foot, bending over, and then lying fully on his side on the ground repairing or working on a machine, with no neck support. He then got off the ground without assistance or difficulty and push the machine to the rear of his home. Claimant was also observed with construction-style knee pads exiting his garage and, an hour later, again observed wearing them.
The appellate court concluded that, as the Board found, the video depicted claimant performing many tasks — with no sign of impairment or difficulty — that were inconsistent and, in some cases, “in direct contrast to” his representations to medical providers and evaluators. His activities contradicted his purported severe functional limitations and limited performance during the FCE. In view of the foregoing, the court said the Board’s finding that claimant had made false representations regarding material facts was supported by substantial evidence and would not be disturbed.