WINNING RESULTS: LOIS Proves WCL Section 114-a Violation, Debunks “Good Days and Bad Days” Theory

LOIS Associate Kristine Rosales, Esq., CLMP and LOIS Law Clerk Joanna Barc, Esq. secured a WCL Section 114-a violation win in a New York Workers’ Compensation claim against a Claimant who misrepresented to the Independent Medical Examiner (IME) his exertional ability and omitted his out-of-work activities to his own treating provider. The Claimant complained to the IME of radiating back pain, an inability to walk any distance, and difficulty negotiating stairs. However, the Carrier obtained covert surveillance video capturing activities after the IME appointment, which demonstrated the Claimant climbing up and down ladders, using a pressure washer for about 28 minutes on his house, and bending over repeatedly. The Claimant’s treating doctor maintained that the Claimant had “good days and bad days,” while the IME opined that based on the surveillance video, there was no causally related disability. On cross-examination of the Claimant, Rosales obtained concessions in that the Claimant did not report his power washing activities to his treating doctor at any time. The Law Judge ruled that Claimant violated Section 114-a and imposed mandatory penalty from the date of the IME (the date when the Claimant misrepresented his out of work activities). The Law Judge found that the Claimant’s misrepresentation was that what the Claimant was complaining that he could not do was at odds with what was shown in the video. As a result of this favorable outcome, the Carrier is not liable for the indemnity payments from the date of the misrepresentation.