Court Says Board Mischaracterized Videotape Surveillance Evidence
A New York appellate court reversed a decision by the state’s Workers’ Compensation Board that disqualified a claimant from receiving future wage replacement benefits because he made false statements about his physical condition in violation of N.Y. Workers’ Comp. Law § 114-a [Matter of Persons v Halmar Intl., LLC, 2019 N.Y. App. Div. LEXIS 2766 (3rd Dept. Apr. 11, 2019)]. The court acknowledged that the Board had considered videotape evidence as to claimant's ability to walk, bend, and move, but said the Board had actually mischaracterized the video, as it failed to show anything actually inconsistent with the claimant's contentions.
Claimant, a construction laborer, sustained work-related injuries to his right shoulder, left shoulder, neck, back and hips, as well as PTSD, in an October 2015 accident wherein he was rescued from inside a large pipe after it began to fill with water. After the claim was established, the workers' compensation carrier raised an issue regarding fraud and claimant's alleged violation of § 114-a.
Following a hearing, a WCLJ ruled that claimant engaged in fraud by greatly exaggerating his condition and failing to disclose his volunteer firefighter activities. The WCLJ imposed a mandatory and discretionary penalty, rescinded indemnity benefits awarded to claimant after October 11, 2015 and disqualified him from receiving future wage replacement benefits. The Board affirmed and also denied claimant's application to reopen the proceedings. Claimant appealed.
Did the Claimant Exaggerate His Symptoms?
The court noted that at claimant’s workers’ compensation hearing, he readily acknowledged his volunteer activity with the local fire department and disclosed that he had responded to six fire department calls between October 11, 2015 and August 2, 2016. At a prior hearing in April 2016, claimant, who was testifying in connection with the third-party action stemming from his injuries, was also forthcoming about his volunteer firefighter activities. There was no indication that the carrier or any physician, either directly or on any questionnaire form, asked claimant about his involvement in any volunteer activity.
The court also noted that the videotape surveillance evidence was not inconsistent with claimant’s reports of injury. They showed him walking around with no apparent difficulty, yet claimant’s medical reports clearly indicated that he was able to walk without an assistive device and then, with only a mild antalgic gait.
Board Engaged in Speculation
The court continued that any conclusion by the Board that claimant's movements of his neck, arms and back were inconsistent with his loss of range of motion were not supported by any medical testimony at the hearing and amounted to speculation on the part of the Board.
Board Mischaracterized Other Video
The court said the Board has mischaracterized other video which depicted the claimant in a grocery story. While it was certainly true that the claimant maintained that his daily living activities had been affected by his injuries, the video in question did not clearly reflect any heavy lifting or repetitive motion inconsistent with his complaints of pain. Significantly, claimant was deemed totally disabled from performing his job duties as a laborer, but not totally disabled from all activities. One psychiatrist’s reference to claimant’s “carrying packages” in the video was exaggerated; he was shown carrying only a loaf of bread. The court concluded, “Simply put, our review of the record reflects that the Board's decision [was] not supported by substantial evidence as it [was] based upon speculation, surmise and mischaracterizations.