In the matter vs. Merrick Academy Queens Public, claimant, a teacher, was injured on May 26, 2015. The claim was established for injuries to the right hip, right shoulder, right elbow, back and for a consequential left elbow injury. Claimant had been out of work and receiving indemnity payments consistently since June 15, 2015. In October 2017, claimant had total right hip replacement surgery and was receiving benefits at the total rate of disability. Although our insurance carrier client obtained an IME on June 11, 2018 conceding a total disability, it raised fraud pursuant to Section 114-A based on surveillance video it secured.
The crucial surveillance footage showed that the claimant had been misrepresenting her condition to the physician who performed the June 11th IME, as well as a different physician who examined the claimant in August 2017. In the video, claimant suddenly had significant restrictions at the time of both examinations which were not displayed at other times. The insurance carrier obtained an IME addendum which found that there was active misrepresentation; the doctor therefore reduced the claimant's disability rating from a total to a moderate partial.
At trial, claimant testified that she is always required to wear a foot brace, which was only the case for the IME examinations based on the surveillance. Claimant attempted to explain that she only used an assistive device for the IME exams since she stopped taking her pain medication to ensure that the physician(s) could accurately record her disability.
Nevertheless, after reviewing the video footage, hearing the testimony of two private investigators and meticulous closing arguments by Attorney Neuman, the judge concluded that claimant did commit fraud as defined in the statute and implemented the severe discretionary penalty of banning claimant from obtaining awards for life.