new york 31503 640

Gardening Videos Kill Claimant’s Bid for Permanency Benefits

28 Mar, 2024 Chris Parker

new york 31503 640

New York, NY ( – When it comes to showing that a workers’ compensation claimant is exaggerating his injuries, video surveillance can be invaluable. Consider a case involving a former maintenance supervisor who, while he claimed injuries to his hands and wrists, couldn’t resist the lure of gardening and decorating for Halloween.

The maintenance supervisor in Deliso v. New York City Transit Authority, No. CV-22-2032 (N.Y. App. Div. 03/14/24), was tasked with regularly using various hand tools and a computer keyboard over the course of his 28-year career. He filed a claim for workers' compensation benefits alleging that he sustained work-related injuries arising out of the repetitive use of his hands, wrists, and shoulders.

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The maintenance supervisor’s physician evaluated him in July 2021 for permanency and found a permanent impairment. The employer, however,  alleged in a November permanency hearing that the claimant wasn’t entitled to benefits because he violated Workers' Compensation Law § 114-a. 

A WCLJ agreed that the supervisor made material misrepresentations regarding his functional abilities during his permanency evaluations, thereby violating § 114-a. The WCLJ imposed a discretionary penalty. The Board affirmed.

The court explained that, under § 114-a (1), a claimant who, for the purpose of obtaining workers' compensation benefits or influencing any determination relative thereto, knowingly makes a false statement or representation as to a material fact shall be disqualified from receiving any compensation directly attributable to such false statement or representation.

In affirming the board’s decision, the court noted that courts have found a false representation to include a claimant’s statements feigning the extent of a disability or exaggerating symptoms or injuries. The court pointed to the following evidence:

Independent Medical Examination

An independent medical examiner found that the supervisor did not have carpal tunnel syndrome or any functional impairment of the wrists or shoulders. Further, the claimant appeared to be exhibiting “symptom magnification” and was not interested in surgery, according to the doctor.

Surveillance Videos

The court noted that the employer provided video surveillance of the supervisor taken on four different days, showing him gardening with both hands, and carrying trash and flower pots. 

“Claimant can also be seen — without any sign or display of discomfort or injury — lifting and keeping both hands and arms above his shoulders at one point for approximately 45 seconds while fixing an outdoor Halloween decoration.”

The video also showed the supervisor using his cell phone and entering, exiting and operating his motor vehicle. 

The supervisor’s response, the court observed, was essentially that he had good days and bad days. His pain levels varied, depending in part on the weather. “He conceded that, on holidays, he decorates his home with decorations and lights, each of which require that he sometimes use his arms in an overhead manner,” the court wrote.

The court found that the above evidence supported the board’s decision that the supervisor misrepresented his actual functional abilities for the purpose of influencing his workers' compensation claim.

The court also upheld the WCLJ’s penalty, which disqualified the supervisor from receiving future wage benefits. The evidence supported the board’s determination that the "claimant's egregious misrepresentation [of his abilities] to the medical providers … [wa]s wholly inconsistent with his actual functional abilities." 

The court affirmed the Board’s decision.

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