“Roll the Video”: Surveillance Footage Supports NY Board’s Finding That Claimant Misrepresented Material Fact

A New York appellate court held that substantial evidence supported a decision by the state’s Workers’ Compensation Board disqualifying a workers’ compensation claimant from further benefits, based upon his misrepresentation of his medical condition [Matter of Ringelberg v. John Mills Elec., 2021 N.Y. App. Div. LEXIS 4176 (3d Dept., June 24, 2021)]. The court noted that the employer’s carrier had introduced videotape evidence that showed claimant walking slowly with a cane when visiting an examining neurosurgeon and on the date of a workers’ compensation hearing, but walking normally on other occasions. Upon seeing the video, the neurosurgeon changed his opinion as to claimant’s condition. All this was evidence supporting the Board’s decision, said the appellate court.

Background

Claimant suffered work-related injuries to his back, groin and neck in August 2008, and his claim for workers’ compensation benefits was established. At a hearing held in December 2017, the employer’s workers’ compensation carrier disclosed that it had carried out surveillance on claimant and raised the issue as to whether claimant had violated N.Y. Workers’ Comp. Law § 114-a. A WCLJ subsequently found that claimant violated § 114-a and assessed the mandatory penalty of forfeiture of benefits for the period between October 5, 2017 and April 10, 2018. Upon administrative review, the state’s Workers’ Compensation Board modified that determination so as to include the discretionary penalty of disqualifying claimant from receiving future benefits. Claimant appealed.

Exaggerating Symptoms = Misrepresentation

Referencing N.Y. Workers’ Comp. Law § 114-a and citing Matter of Peck v Donaldson Org., 191 AD3d 1078, 1079, 139 N.Y.S.3d 461 (2021), the appellate court noted that “feigning the extent of a disability or exaggerating symptoms and/or injuries have been found to constitute material false representations within the meaning of the statute.” Moreover, whether a claimant has violated N.Y. Workers’ Comp. Law § 114-a was within the province of the Board; its decision would not be disturbed if supported by substantial evidence.

Here, claimant had been examined in June 2017 on behalf of the carrier by a neurosurgeon who found claimant had a 75 percent temporary partial disability. In October 2017, the neurosurgeon again examined claimant. On both occasions, the doctor reported that claimant walked stooped over, with a slow, deliberate gait while using a cane. The doctor indicated that at the second examination, claimant appeared less mobile and slower. As a result, the surgeon characterized claimant’s condition as worsened and indicated claimant suffered from a temporary total disability.

Roll the Video

Surveillance video taken on the day of claimant’s medical examination in October 2017 showed him walking into and coming out of a doctor’s office much as the neurosurgeon had reported, stooped over and walking very slowly, using a cane and wearing a back brace. Claimant also appeared to struggle getting into the passenger seat of an automobile. Approximately 45 minutes after leaving the doctor’s office, claimant is shown in the video in the parking lot of a store. Claimant is depicted walking in an upright position at a normal pace, without the use of a cane and not wearing a back brace. Claimant was also depicted pushing a shopping cart and getting into the driver’s seat of another automobile without difficulty and driving away.

Surveillance video was also taken on a day in December 2017 that claimant attended a Board hearing. That video depicts claimant walking normally without a cane and getting into a vehicle without difficulty in the hours prior to the hearing. Claimant is shown later that day walking from the parking lot into the Board’s office, using a cane and walking much slower and in a more deliberate pace than he had that day. Claimant is also depicted on other days walking normally and getting in and out of an automobile without difficulty. After reviewing the video surveillance footage, the neurosurgeon issued an addendum to his October 2017 report, changing his opinion from temporary total disability to a mild to moderate temporary partial disability.

Did Claimant’s Condition Fluctuate?

At the disqualification hearing, claimant testified that his condition fluctuated and that the reason that his condition improved in the 45 minutes after the visit to the doctor’s office in October 2017 was because he took two pain pills when he left the office and he was able to lay down in the car during the ride to the store. Although the neurosurgeon later testified that claimant’s condition could fluctuate from time to time during a day and that pain medication could affect his symptoms, he further testified that the degree of fluctuation reflected in the surveillance videos was “not medically consistent” with his diagnosed condition and treatment thereof. The appellate court held that in light of the the doctor’s statements and the other facts presented, the Board’s finding that claimant knowingly made a material misrepresentation in violation of N.Y. Workers’ Comp. Law § 114-a was supported by substantial evidence and would not be disturbed.