Video Surveillance & Social Media Result in Misconduct Finding by NY Board

A determination by the New York Workers’ Compensation Board that a claimant made false representations regarding material facts in violation of N.Y. Workers’ Comp. Law § 114-a was supported by substantial evidence and would not be disturbed where videotape evidence and social media postings significantly contradicted claimant’s testimony as to his current physical condition [Matter of Papadakis v Fresh Meadow Power NE LLC, 2018 N.Y. App. Div. LEXIS 8673 (3d Dept. Dec. 20, 2018)].

Video Surveillance & Social Media At Odds With Testimony

According to the court, claimant represented to an independent medical examiner that, due to his injuries, he could not sit upright or stand without head support, became dizzy “from time-to-time,” particularly when he repeatedly bent down or moved quickly, could not engage in play or activities with his son, was “severely depressed,” engaged in “nothing social” and was sensitive to light and noise. However, at the hearing, the employer and its workers’ compensation carrier submitted video surveillance footage of claimant taken approximately two weeks prior that showed, among other things, claimant working on a project near the rear deck of his residence that involved lifting and carrying wood, engaging in an activity involving a soccer ball with a child, presumably his son, taking items out of the rear of a vehicle, including a paintball rifle, and carrying firewood and placing it into a pit.

IME Changes His Mind After Seeing Video

The independent medical examiner reviewed the video surveillance and testified that claimant appeared “quite active” and showed “no signs of any physical impairment” or acute distress. The expert stated that what he saw in the video surveillance “was not consistent with,” and “out of proportion from,” what claimant reported in his office. The employer and carrier also submitted social media evidence that consisted of several photographs posted within the relevant time period depicting claimant socializing and smiling at various locations, including a Disney park and the beach. Based on the foregoing, the appellate court finding that claimant violated § 114-a was supported by substantial evidence.

Discretionary Sanctions Required Further Explanation

The court did agree with claimant in his challenge to the Board’s imposition of discretionary sanctions disqualifying him from receiving future wage replacement benefits. The matter was remitted so that the Board could fulfill its obligation and provide some explanation for its determination in this regard.

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