Surveillance Video Leads to NY Board’s Finding of Disqualification under § 114-a

A New York appellate court affirmed a decision of the state’s Workers’ Compensation Board that found an injured employee had misrepresented his physical condition to his treating physicians–videotape surveillance showed claimant performing activities substantially more strenuous than those that he told his physicians he was able to do–all in violation of N.Y. Workers’ Comp. Law § 114-a [Matter of Peck v. The Donaldson Org., 2021 N.Y. App. Div. LEXIS 607 (3d Dept. Feb. 4, 2021)]. Substantial evidence supported the Board’s findings, said the appellate court. The Board’s decision to impose not only a mandatory penalty, but a discretional penalty disqualifying claimant from receiving future wage replacement benefits was affirmed.

Background

Claimant, a carpenter, sustained work-related injuries to his lower back in 2013. His claim was established, and in 2015, he underwent spinal fusion surgery and was subsequently deemed medical unable to return to work. Thereafter, claimant continued to receive treatment for chronic pain and was prescribed opiate medications. In January 2018, a WCLJ found that claimant had not yet reached MMI and proceedings were continued to consider claimant’s request for a spinal cord simulator trial.

In November 2018, the employer’s workers’ compensation carrier raised the issue of fraud under N.Y. Workers’ Comp. Law § 114-a, citing video surveillance footage showing claimant engaged in activities that were inconsistent with his claimed disability. During the hearing that followed, testimony was taken from claimant as well as the carrier’s investigator, and the surveillance videotapes were submitted for the WCLJ’s review. At the conclusion of the hearing, the WCLJ found that claimant did not misrepresent the extent of his disability in violation of § 114-a. A panel of the state’s Workers’ Compensation Board, however, concluded that claimant did violate Workers’ Compensation Law § 114-a and imposed a mandatory penalty as well as a discretionary penalty permanently disqualifying claimant from receiving future wage replacement benefits. Claimant appealed.

Appellate Court’s Decision

Initially, the appellate court noted that whether a claimant had violated N.Y. Workers’ Comp. Law § 114-a was within the province of the Board, that the Board was the sole arbiter of witness credibility, and its decision would not be disturbed if supported by substantial evidence. The appellate court also noted that the surveillance videotapes, taken at different times during 2018, depicting claimant engaged in various activities that he was allegedly incapable of performing due to his disability. The videos showed claimant grocery shopping, kneeling down, bending down and reaching overhead, and loading grocery bags into his car. They also showed claimant shoveling snow and reaching overhead with a snow rake to remove snow from the roof of his house.

Performing Construction Work & Walking on Roof

Claimant was also observed performing a variety of physical tasks in connection with the construction of a shed on his property. These included, among other things, carrying lumber and a ladder, using a screw gun, hammering nails, standing on a ladder and on scaffolding, installing roof flashing, moving construction materials, climbing up and down a ladder and walking on a roof with a leaf blower.

Claimant’s Explanatory Testimony

The court acknowledged claimant’s explanatory testimony. He had testified, for example, that while he had performed the activities captured by the video surveillance, he had done so only for short, 15-to-20 minute periods of time and while he was medicated with pain suppressants.

Inconsistent with Manner in Which He Portrayed Himself to Physicians

The appellate court stressed, however, that the Board concluded that the above activities were inconsistent with the manner in which claimant portrayed himself to the physicians who had examined him, in that to them, he presented as someone with significant functional limitations requiring the use of a cane. In one visit, for example, claimant had indicated to a health care provider that he had severe pain in his lower left extremity with numbness, tingling and loss of balance, and that he ambulated with a cane. During another visit to a different doctor, claimant had indicated he preferred standing for the examination, as the pain level when seated was too great.

Overstated Extent of Disability for Purpose of Influencing Workers’ Comp Claim

The appellate court said it was apparent that claimant overstated the extent of his disability when interacting with physicians for the purpose of influencing his workers’ compensation claim. Significantly, the videotapes did not show that claimant walked with a limp or that he required the use of a cane. Although claimant disclosed to physicians that he engaged in limited activities and indicated that he tried to remain active, the types of activities that he was filmed performing were much more extensive and strenuous than those he should have been able to perform given his reported limitations. Specifically, claimant’s attempt to downplay the extent of his activities in constructing the shed was at odds with the content of the surveillance videotapes.

Substantial evidence supported the Board’s findings. Moreover, the appellate court found the Board had explained the basis for imposing the more severe penalty, as it found that the activities captured on the surveillance videotapes showed that claimant’s misrepresentation of the level of his disability was so egregious and severe as to warrant disqualification. Inasmuch as the record supported the Board’s finding, the court could not conclude that the penalty was disproportionate to claimant’s material misrepresentations.