Recently, our team obtained a decision from the New York Workers’ Compensation Board Panel permanently barring the claimant from any further indemnity benefits pursuant to the mandatory and discretionary penalties of Section 114-a.
The claimant in this matter had been receiving indemnity benefits from the carrier since 1990. In developing the case for fraud, the carrier had surveillance performed of the claimant that showed him performing work activities as an auto mechanic. Additionally, the carrier obtained evidence that the claimant was used in the advertising of the business and was held out as an experienced mechanic. The carrier sent questionnaires to the claimant requesting the status of the work activities. The claimant returned the questionnaires indicating he was not working. Unfortunately, the correspondence to the claimant was not copied to his attorney nor the Workers’ Compensation Board. Focusing on this final fact that the questionnaire was not also sent to the claimant’s attorney, and despite the incredible testimony of the claimant that he simply would “hang out” at the repair shop every day without working, the workers’ compensation law judge at the hearing level precluded these questionnaires and found that Section 114-a did not apply.
That decision was appealed and the Board Panel reversed the judge’s decision, disregarding the issue of the questionnaires and focusing instead on the surveillance and the flagrant lies of the claimant during the trial hearing. As such, the Board Panel imposed both the mandatory and discretionary penalties barring the claimant from any future benefits.
This case demonstrates the importance of obtaining strong surveillance and strong testimony at the trial level. Although the workers’ compensation law judge is typically given wide discretion with regard to credibility issues of witnesses, in a case such as this, the evidence was undeniable. We also stress that this case highlights the importance of appropriately copying all necessary parties on any correspondence as any correspondence to a represented claimant must be copied to his or her attorneys.