February Newsletter

Matter of Calderon v New York City Dept. of Corr., 144 A.D.3d 1382, (3rd Dept. 2016)

Issue:               Fraud – The failure to disclose prior injuries

Facts:               The Claimant had completed an application for workers’ compensation benefits (WCB form C-3) and failed to relate that he had sustained prior injuries to the same body parts.  The medical examiners who performed permanency evaluations on behalf of both the employer and the Claimant were not advised that he had sustained any similar injuries in the past.  The WCB found that the Claimant had violated WCL Section 114-a (engaged in workers’ compensation fraud) by failing to disclose the prior injuries.  It was factually significant that the Claimant subsequently testified at a workers’ compensation hearing that he had “totally forgot” about his prior injuries when completing the form C-3 and when speaking with both medical examiners.

Determination:            Affirmed.

Comment:       While this decision is now over one year old, I have seen the WCB rely on it in a number of its own decisions when determining whether a claimant has made a material misrepresentation to a medical examiner significant enough to trigger fraud.  A big part of the analysis appeared to involve whether a Claimant subsequently admits (or denies) at a hearing that they had provided inaccurate information to the examiner or on the C-3.  In other words, in order to be successful on a claim for fraud, a request should be made to take the Claimant’s testimony in order to strengthen your position.   Know this case.

Williams v New York State Off. of Temporary Disability and Assistance, 2018 N.Y. App. Div. LEXIS 1088, 2018 N.Y, Slip Op 01008 (Feb 15th, 2018)

Issue:               Credibility and statutory presumptions of compensability

Facts:               The Claimant alleged sustaining multiple injuries after being struck by the doors of an elevator which had closed on her abruptly.  Video surveillance of the event, taken from inside the elevator, contradicted the Claimant’s allegations and the case was disallowed.  The Claimant appealed because the uncontroverted opinion of her own physician had supported her allegations, and she alleged that the WCB had improperly fashioned its own medical opinion when reaching its determination.

Determination:            Affirmed.

Comment:       This case provides a good example of the high evidentiary weight placed by the WCB on contemporaneous CCTV footage regarding the mechanism of an injury.  Here, the Court also discounted the medical evidence provided by the Claimant because it was based upon information that was unsubstantiated by contemporaneous documentary evidence.

This case also shows that one needs to determine whether there is contemporaneous CCTV footage of an event in question as part of their investigation regarding compensability.  In fact, it is probably the first question that should be asked when a claim is being presented.

DuPont v Quality Distrib., Inc., 2018 N.Y. App. Div. LEXIS 1089, 2018 Slip Op 01109 (Feb. 15th, 2018)

Issue:               Burden of proof.

Facts:               The Claimant, a truck driver, claimed injuries to his neck and low back after being knocked forward in his seat.  He maintained that he had to “suddenly stop” his vehicle.  The employer contested the claim because the contemporaneous vehicle log records (software which recorded the events occurring inside the truck) had been inconsistent with the Claimant’s version of the event.  The WCB established the claim and discounted the evidentiary value of the employer’s records.  Additionally, the WCB found the Claimant to be credible with regards to the mechanism of injury and consistent with the histories that he had provided to both his attending physician and the WC carrier’s independent medical evaluator.  In other words, he had satisfied his obligation of providing competent medical evidence to support his claim.

Determination:            Affirmed.

Comment:       This case provides a good example of the Court’s tendency to affirm the WCB’s determination if there is substantial evidence to do so regardless of whether a different conclusion could have been reached.  More importantly, it highlights the proof needed to satisfy the threshold question of whether a Claimant has produced competent medical evidence which signifies a “probability” that their resulting injuries were the result of a work related event or incident.