Injured Worker's Zealous Gardening Helps Grow Case He Feigned Disability

Rochester, NY (WorkersCompensation.com) – It costs money to hire an insurance investigator. But it can pay off when surveillance video shows that a worker’s injury may be far less severe than he claims.

An employee who injured his back played a role in the termination of his benefits when he became the unwitting star in a series of surveillance videos showing him gardening up a storm in In re: Michael Arena v. Upstate Niagara Cooperative Inc., No. 533376 (N.Y. Sup. Ct. App. Div. 09/01/22).

The employee hurt his lower back at work in January 2020. A February MRI showed he had a disc injury that was impinging on his nerves.

He was classified as 100 percent disabled from late April 2020 to early August 2020. Sure, he helped his wife with gardening during that time. But it was mostly supervising, he said. And after all, his doctor said he should stay active.

Eventually, the Workers' Compensation Board found that the employee had misrepresented his functional capabilities and violated of Workers' Compensation Law § 114-a. That provision states that a claimant who, for the purpose of obtaining workers' compensation benefits, 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.

The Board relied on surveillance video showing the worker, among other things, engaging in a variety of gardening activities, including using a post hole digger, shovel, push broom and reciprocating saw, carrying a bag of mulch, disposing of shrubbery, and moving large landscaping stones. The video also showed him repeatedly bending between 70 degrees and 90 degrees and kneeling to perform the tasks.

Additional videos show claimant climbing a ladder to take down decorations, as well as carrying folding tables and chairs and placing them in a storage shed and the back of a truck.

Finally, the employee is seen in the video carrying two, 30-can packs of beer and driving for more than two hours from New York to Pennsylvania.

As a result of the 114-a violation, the Board denied him compensation for the period of June 4, 2020 to Jan. 14, 2021. It also permanently disqualified the worker from receiving wage replacement benefits

The employee appealed.

On appeal, the court noted that feigning the extent of a disability has been found to constitute a material false representation within the meaning of § 114-a.

The court acknowledged that some of the activities shown in the surveillance footage were consistent with the medical testimony regarding the worker’s capabilities, and that his doctor advised him to remain as active as he could and that it was anticipated he would have good days and bad days.

On the other hand, the employee was 100% disabled at the time, the court noted. Further, his physicians opined that he would not have been capable of engaging in some of the activities depicted. Those activities included routinely bending at the waist to 90 degrees and holding that position to, among other things, use a reciprocating saw.

Further, even setting aside the medical evidence, the worker’s testimony was inconsistent with the videos, the court stated. In fact, the court observed, he downplayed the extent of his participation. For example, he said his wife did 99 percent of the gardening work, and that he provided “miniscule” contributions which largely consisted of "moral support."

The court pointed out that although the worker acknowledged that he moved several landscaping rocks, he testified that he only demonstrated how to utilize a post hole digger and could not recall whether he used a Sawzall to cut up and remove certain shrubbery. “As the Board observed, such testimony stood in stark contrast to the surveillance videos, wherein claimant is seen carrying a bag of mulch, using a Sawzall, a shovel, a weed whacker and a post hole digger, and repeatedly bending — often to 90 degrees — and holding that position in order to dig or pick up tools and yard debris,”

At various points in the videos, the court added, the worker could be seen carrying and storing ladders, tools, a folding table, and chairs.

Based on the testimony and videos, the court held, there was sufficient evidence to support the Board's conclusion that the employee made material misrepresentations and thus violated Workers' Compensation Law § 114-a.

The court upheld the penalties imposed by the Board, reasoning, in part, that the worker’s “attempt to downplay or minimize his activities [was] sufficiently egregious to warrant permanent disqualification from further wage replacement benefits.”

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