Was Curling Lawnmowers with Shoulder Injury Xmas Miracle or Misrepresentation?

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Schenectady, NY (WorkersCompensation.com) -- A few key pieces of evidence usually work together to show whether an employee was or was not misrepresenting his injuries to obtain workers’ compensation benefits.

In June 2016, a welder and fabricator was injured at work when he fell to the ground while carrying a rail, landing on his outstretched right arm and jamming his shoulder. He obtained workers' compensation benefits for a work-related injury to his right shoulder. 

In March 2022, his treating physician examined him. The physician had performed many such exams for workers’ compensation claimants and performed such exams weekly. He found that the welder displayed during the visit profoundly limited arm motion. He found that the welder had sustained a 70% SLU (schedule loss of use) of the right arm. 

The doctor later testified that something didn’t seem quite right during the exam. Given the welder’s history and injury, he felt his range of motion was far worse than it should have been. In short, he suspected his patient was exaggerating. 

The workers’ compensation carrier filmed the welder in April 2022. In truth, the resulting videos didn’t show him curling lawnmowers, or juggling hundred-pound weights. They allegedly showed him, less than a month after the March exam, lifting 40- to 50-pound lawnmowers to at least waist level. He was also purportedly seen picking up and lifting a 10-pound screen door over his head. 

The welder attributed the discrepancy between his functional abilities as shown in the videos, and the doctor’s findings, to the doctor’s testing errors and "misrepresentation of reality." 

In plain terms, under New York law, an employee can’t get workers’ compensation benefits based on a lie or exaggeration. 

Specifically, Workers' Compensation Law § 114-a (1) provides: "[i]f for the purpose of obtaining compensation ... a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation." 

The Workers' Compensation Board denied the claimant further benefits.

Was the board entitled to cut off the welder’s benefits?

A. No. There was no clear evidence that he was exaggerating to obtain benefits.

B. Yes. The doctor’s suspicion and the videos supported the board’s decision.

If you selected B, you agreed with the court in Giesselmann v. Rotterdam Steel, LLC, No. CV-23-1921 (N.Y. App. Div. 12/12/24).

The court pointed out that the claimant went from hardly being able to move his arm in March to lifting lawnmowers off the ground in April. Lifting the screen over his head also suggested his shoulder injury may not have been as severe as he made it out to be.

As to the welder’s claim about his doctor’s errors, that claim was not persuasive given the doctor’s significant experience performing such examinations.

The doctor’s statements also supported the Board’s decision. “[The doctor] opined that claimant's complaints were less than what his examination findings revealed, that something was not quite right when he examined claimant and that he was suspicious of claimant's efforts during the examination,” he wrote. 

The court noted that it was up to the Board whether to credit the doctor’s testimony. Substantial evidence, including that testimony, supported the Board’s conclusion that the welder made material misrepresentations regarding his actual functional abilities for the purpose of influencing his claim, the court stated.

The court affirmed the Board’s finding that the welder violated § 114-a. It also affirmed the Board's conclusion that claimant's embellishment of his condition and functional abilities to the medical examiner was egregious, such that the Board could permanently disqualify him from  future wage replacement benefits

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