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BOARD’S FINDING THAT CLAIMANT FRAUDULENTLY EXAGGERATED THE EFFECTS OF HIS INJURIES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, BOARD’S DETERMINATION REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the finding that claimant fraudulently exaggerated the effects of his injuries was not supported by the record. The Board’s rulings were based upon claimant’s answering calls as a volunteer firefighter and some video surveillance footage. But there was no evidence of what activities claimant engaged in as a volunteer firefighter, and the video evidence was deemed to have been mischaracterized by the Board:

Regarding the video surveillance at a personal injury accident, the Board found that claimant exhibited no apparent difficulty or disability. In the video surveillance, claimant is observed walking around the accident scene; which is not inconsistent with his reports of injury given that he did not need an assistive device to walk but, as noted in his medical records, could walk independently with a mild antalgic gait. Furthermore, any conclusion by the Board that claimant’s movements of his neck, arms and back were inconsistent with his loss of range of motion were not supported by any medical testimony at the hearing and amount to speculation as to whether such movements were inconsistent with the degree of range of motion noted in his medical records. Again, claimant was not in need of any assistive device for his injuries and the degree to which claimant moved his neck, arm and back in the video surveillance, and whether it was inconsistent with his medical records, could not be ascertained without additional medical testimony. …

We also find that the Board mischaracterized the video surveillance depicting claimant “walking into a grocery store . . . and then bending fully at the waist to retrieve a loaf of bread.” Although claimant maintained that his daily living activities had been affected by his injuries, the video did not clearly reflect any heavy lifting or repetitive motion inconsistent with his complaints of pain. Significantly, claimant was deemed totally disabled from performing his job duties as a laborer, but not totally disabled from all activities. It is also noted that the addendum submitted … is factually inaccurate as it incorrectly indicates that claimant is seen “carrying packages” at the grocery store, but the video depicts claimant carrying only a loaf of bread. Matter of Persons v Halmar Intl., LLC, 2019 NY Slip Op 02760, Third Dept 4-11-19

 

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